[House Hearing, 110 Congress]
[From the U.S. Government Publishing Office]





      PROTECTING AMERICAN EMPLOYEES FROM WORKPLACE DISCRIMINATION

=======================================================================

                                HEARING

                               before the

                        SUBCOMMITTEE ON HEALTH,
                     EMPLOYMENT, LABOR AND PENSIONS

                              COMMITTEE ON
                          EDUCATION AND LABOR

                     U.S. House of Representatives

                       ONE HUNDRED TENTH CONGRESS

                             SECOND SESSION

                               __________

           HEARING HELD IN WASHINGTON, DC, FEBRUARY 12, 2008

                               __________

                           Serial No. 110-77

                               __________

      Printed for the use of the Committee on Education and Labor


                       Available on the Internet:
      http://www.gpoaccess.gov/congress/house/education/index.html

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                    COMMITTEE ON EDUCATION AND LABOR

                  GEORGE MILLER, California, Chairman

Dale E. Kildee, Michigan, Vice       Howard P. ``Buck'' McKeon, 
    Chairman                             California,
Donald M. Payne, New Jersey            Senior Republican Member
Robert E. Andrews, New Jersey        Thomas E. Petri, Wisconsin
Robert C. ``Bobby'' Scott, Virginia  Peter Hoekstra, Michigan
Lynn C. Woolsey, California          Michael N. Castle, Delaware
Ruben Hinojosa, Texas                Mark E. Souder, Indiana
Carolyn McCarthy, New York           Vernon J. Ehlers, Michigan
John F. Tierney, Massachusetts       Judy Biggert, Illinois
Dennis J. Kucinich, Ohio             Todd Russell Platts, Pennsylvania
David Wu, Oregon                     Ric Keller, Florida
Rush D. Holt, New Jersey             Joe Wilson, South Carolina
Susan A. Davis, California           John Kline, Minnesota
Danny K. Davis, Illinois             Cathy McMorris Rodgers, Washington
Raul M. Grijalva, Arizona            Kenny Marchant, Texas
Timothy H. Bishop, New York          Tom Price, Georgia
Linda T. Sanchez, California         Luis G. Fortuno, Puerto Rico
John P. Sarbanes, Maryland           Charles W. Boustany, Jr., 
Joe Sestak, Pennsylvania                 Louisiana
David Loebsack, Iowa                 Virginia Foxx, North Carolina
Mazie Hirono, Hawaii                 John R. ``Randy'' Kuhl, Jr., New 
Jason Altmire, Pennsylvania              York
John A. Yarmuth, Kentucky            Rob Bishop, Utah
Phil Hare, Illinois                  David Davis, Tennessee
Yvette D. Clarke, New York           Timothy Walberg, Michigan
Joe Courtney, Connecticut            Dean Heller, Nevada
Carol Shea-Porter, New Hampshire

                     Mark Zuckerman, Staff Director
                   Vic Klatt, Minority Staff Director

         SUBCOMMITTEE ON HEALTH, EMPLOYMENT, LABOR AND PENSIONS

                ROBERT E. ANDREWS, New Jersey, Chairman

George Miller, California            John Kline, Minnesota,
Dale E. Kildee, Michigan               Ranking Minority Member
Carolyn McCarthy, New York           Howard P. ``Buck'' McKeon, 
John F. Tierney, Massachusetts           California
David Wu, Oregon                     Kenny Marchant, Texas
Rush D. Holt, New Jersey             Charles W. Boustany, Jr., 
Linda T. Sanchez, California             Louisiana
Joe Sestak, Pennsylvania             David Davis, Tennessee
David Loebsack, Iowa                 Peter Hoekstra, Michigan
Phil Hare, Illinois                  Cathy McMorris Rodgers, Washington
Yvette D. Clarke, New York           Tom Price, Georgia
Joe Courtney, Connecticut            Virginia Foxx, North Carolina
                                     Timothy Walberg, Michigan




























                            C O N T E N T S

                              ----------                              
                                                                   Page

Hearing held on February 12, 2008................................     1

Statement of Members:
    Andrews, Hon. Robert E., Chairman, Subcommittee on Health, 
      Employment, Labor and Pensions.............................     1
        Prepared statement of....................................     4
    Kline, Hon. John, Senior Republican Member, Subcommittee on 
      Health, Employment, Labor and Pensions.....................     4
        Prepared statement of....................................     6
        Additional submissions:
            Letter, dated February 11, 2008, from the Union of 
              Orthodox Jewish Congregations of America...........   123
            Prepared statement of the HR Policy Association, 
              Internet address...................................   124
    McCarthy, Hon. Carolyn, a Representative in Congress from the 
      State of New York, prepared statement of...................   122

Statement of Witnesses:
    Alchevsky, John I., National Volunteer Fire Council..........    22
        Prepared statement of....................................    23
    al-Suwaij, Zainab, executive director, American Islamic 
      Congress...................................................    89
        Prepared statement of....................................    91
    de Bernardo, Mark, partner, Jackson Lewis, LLP...............    15
        Prepared statement of....................................    16
    Foltin, Richard T., legislative director and counsel, office 
      of government and international affairs, the American 
      Jewish Committee...........................................    64
        Prepared statement of....................................    67
        Additional submission: ``Organizations Supporting the 
          Workplace Religious Freedom Act''......................    65
    Foreman, Michael, on behalf of the Leadership Conference on 
      Civil Rights...............................................    17
        Prepared statement of....................................    18
    Goldstein, Judy, speech therapist............................    93
        Prepared statement of....................................    94
    Gray, Michael, partner, labor and employment practice, Jones 
      Day........................................................    78
        Prepared statement of....................................    80
    Jones, Jamie Leigh, former Halliburton/KBR employee..........    10
        Prepared statement of....................................    12
    Norton, Helen, associate professor, University of Colorado 
      School of Law..............................................   105
        Prepared statement of....................................   106
    Piscitelli, Kathryn, Esq., USERRA practitioner...............    44
        Prepared statement of....................................    45
    Robinson, Alfred, Jr., shareholder, Ogletree Deakins.........    24
        Prepared statement of....................................    26
    Serricchio, Michael, former Air Force reservist..............    35
        Prepared statement of....................................    37
    Standish, James D., director of legislative affairs, Seventh-
      Day Adventist Church World Headquarters....................    96
        Prepared statement of....................................    98
    Stittleburg, Philip C., National Volunteer Fire Council......    32
        Prepared statement of....................................    34
    Wood, George R., Esq.........................................    38
        Prepared statement of....................................    40






























 
                     PROTECTING AMERICAN EMPLOYEES
                     FROM WORKPLACE DISCRIMINATION

                              ----------                              


                       Tuesday, February 12, 2007

                     U.S. House of Representatives

         Subcommittee on Health, Employment, Labor and Pensions

                    Committee on Education and Labor

                             Washington, DC

                              ----------                              

    The subcommittee met, pursuant to call, at 2:00 p.m., in 
Room 2175, Rayburn House Office Building, Hon. Robert Andrews 
[chairman of the subcommittee] presiding.
    Present: Representatives Andrews, McCarthy, Tierney, Wu, 
Sanchez, Sestak, Loebsack, Hare, Kline, McKeon, and Boustany.
    Staff present: Aaron Albright, Press Secretary; Tylease 
Alli, Hearing Clerk; Jordan Barab, Health/Safety Professional; 
Carlos Fenwick, Policy Advisor for Subcommittee on Health, 
Employment, Labor and Pensions; Michael Gaffin, Junior 
Legislative Associate, Labor; Brian Kennedy, General Counsel; 
Sara Lonardo, Junior Legislative Associate; Joe Novotny, Chief 
Clerk; Cameron Coursen, Minority Assistant Communications 
Director; Ed Gilroy, Minority Director of Workforce Policy; Rob 
Gregg, Minority Legislative Assistant; Alexa Marrero, Minority 
Communications Director; Jim Paretti, Minority Workforce Policy 
Counsel; Molly McLaughlin Salmi, Minority Deputy Director of 
Workforce Policy; and Ken Serafin, Minority Professional Staff 
Member.
    Chairman Andrews [presiding]. Ladies and gentlemen, if I 
may have your attention, we will bring the subcommittee to 
order. Thank for your attendance here this afternoon. We thank 
our outstanding panels of witnesses. We are very glad to have 
you with us.
    American employment law is really focused on three 
principles.
    The first is the general rule that employees are at the 
will of employers, unless there is a contract, collective 
bargaining agreement, or rule to the opposite. So that means 
the employer can do pretty much as the employer sees fit.
    The second general principle is that there are some 
exceptions to that first general principle, that an employer 
may not discriminate on the basis of race, gender, national 
origin, religion. And we have added to those exceptions some 
principles that deal with discrimination against the person who 
serves in the uniform of our country, in the military services, 
and some other areas.
    The third general principle is that, if a person has been 
wronged in the field of employment discrimination, they should 
have a remedy which makes them whole for that wrong.
    The purpose of today's hearing is to look at some very 
important current topical issues that deal with whether or not 
we need to revise some of the rules that flow from those 
general principles.
    I want to say from the outset I think it is a consensus of 
the committee that the three general principles are held in 
broad agreement by the members of the committee. We are not 
about reversing the doctrine of at will employment, we are 
certainly not about undercutting the notion that discrimination 
is a perverse phenomenon that we wish to retard, and we are not 
about the notion that we want to any way subvert the rights of 
people to recover if they have been wronged.
    In fact, the opposite is true. We are interested in 
exploring some instances where there is at least the question 
raised of discriminatory treatment, and we are especially 
interested in also the question of whether or not remedies that 
exist are, in fact, adequate when there has been a finding of 
discrimination against a person.
    We will have two panels today.
    The first panel will deal with three separate, but very 
important questions.
    The first has to do with remedies. If a person has, in 
fact, been wronged, if there is a finding that a person has 
been a victim, in the instance of our witness today, of sexual 
harassment and gender discrimination, is that person afforded a 
true and complete remedy if that remedy is limited by a 
mandatory binding arbitration clause? It is a very important 
question. We are going to hear some testimony on it from both 
sides.
    The second issue we are going to take a look at is those 
who serve our country in a volunteer capacity, who serve in 
fire, EMS, other public safety professions, because, although 
these individuals do not receive monetary compensation, they 
are absolutely professionals in every respect of the word.
    What happens to one of them when they respond to a huge 
emergency, like a Hurricane Katrina situation, and then attempt 
to return to work and find out that there is no work to which 
they can return or that they are not permitted to go in the 
first place? We will be addressing that question.
    Third, this panel will take a look at the issue of those 
who voluntarily wear the uniform of our country in the armed 
forces. We have in place a statute that is designed to assure 
those individuals that when they voluntarily don the uniform of 
the United States and serve in the military, the civilian job 
that they left will be there for them when they return.
    Times have changed in two respects which caused us to take 
a look at this general principle.
    The first is the huge reliance our country is placing on 
our Guard and Reserve. There are hundreds of thousands of 
Americans who have faced extensive deployments and who are 
members of our Guard and Reserve and serving with great courage 
and effectiveness around the world. So the long deployments 
used to be very much the exception and not the rule. Now they 
are becoming the rule and not the exception, and it raises that 
issue.
    And then the second thing that has changed is the nature of 
our workforce and simply returning to a job, which may not 
adequately compensate them, regardless of their standing in a 
firm. What is necessary to bring that person back to the place 
that he or she left when they went to serve our country 
overseas or, frankly, serve our country here at home, if the 
deployment would leave them here at home?
    The second panel today will deal with the question of the 
extent to which people are protected against religious 
discrimination in the workplace, and it will focus on the 
question as to what extent employers who are required by law to 
give reasonable accommodations are giving reasonable 
accommodations.
    The phrase ``reasonable accommodations'' has been 
substantially litigated, and there is a point of view that the 
phrase has been watered down to the point where it means very, 
very little so that any de minimis expression by an employer of 
inconvenience now serves to stand as a substantial burden which 
would then excuse the employer from making accommodations to a 
person because of his or her religious preference. So we are 
going to take a look at that issue in the second panel.
    Obviously, this is a sweeping array of issues, and not all 
of them are related to each other, except that they fall under 
the rubric of employment discrimination law.
    I want to assure my friend, the ranking member, and all the 
members of the committee that we will approach these issues 
with due deliberation. I regard this as a first hearing, an 
initial round of analysis of these issues, because they are 
quite complex, they do not easily lend themselves to easy 
solutions.
    There have been some points of consensus. Several members 
of this committee are co-sponsors of legislation that would 
deal with the problem of volunteer first responders being able 
to return to their place of employment. It has rather broad 
bipartisan support.
    An amendment similar to that bill was adopted by a wide 
margin in the context of the Homeland Security Authorization 
bill earlier this year. There is significant bipartisan support 
for legislation that would address the question of religious 
discrimination, as we will hear in the second panel.
    But I understand there are significant differences over 
many of these issues, and we are going to start the process of 
airing these views out today.
    I would just conclude by saying that I view this as an 
exercise in applying trusted principles to new situations. I do 
not think we want to undermine the principles from which we 
started, but we want to understand how those principles apply 
to some very difficult and very trying situations that we will 
hear about from many of the witnesses here today.
    So I thank the panel for their participation.
    I am at this point going to turn to my friend, the ranking 
member of the subcommittee, for his opening statement, and I 
would say any other members who wish to submit an opening 
statement may do so in writing, and it will be made a part of 
the record.
    Mr. Kline?
    [The statement of Mr. Andrews follows:]

Prepared Statement of Hon. Robert E. Andrews, Chairman, Subcommittee on 
                 Health, Employment, Labor and Pensions

    Good morning and welcome to the HELP Subcommittee's hearing on 
``Protecting American Employees from Workplace Discrimination.''
    Today the Subcommittee will focus its attention on anti-
discrimination protections for our service-members, volunteer 
firefighters and emergency medical personnel (EMS) personnel, 
individuals of a particular faith and all Americans with respect to 
mandatory arbitration clauses in employment contracts. Whether it is a 
reservist returning home from Afghanistan who has been demoted or a 
volunteer firefighter whose employer prohibits him from assisting in 
the rebuilding Louisiana after Hurricane Katrina or a Muslim American 
who is denied a job because of her hijab ``injustice anywhere is a 
threat to justice everywhere,'' and therefore, we have a responsible to 
not allow these instances to go unchecked.
    The specific issues we will address today include whether mandatory 
arbitration clauses in employment contracts usurp an employee's right 
to judicial review for statutory claims, whether there is a lack of 
employment protections for volunteer firefighters and EMS personnel, 
whether there are loopholes in the Uniformed Services Employment and 
Reemployment Rights Act (USERRA) and whether Title VII of the Civil 
Rights Act needs to be strengthened to further provide protection for 
individuals of a particular religion.
    A rising number of employers require their employees to sign 
mandatory arbitration agreements. These agreements force employees to 
seek redress for any employment dispute through an arbitrator or panel 
of arbitrators rather than by a judge or jury. While employers see this 
as a faster and less expensive way to address disputes many employee 
rights advocates believe these agreements put workers at a huge 
disadvantage.
    We rely on our volunteer firefighters and EMS personnel as the 
first line of defense in a wide array of emergencies across the country 
every day including fires, emergency medical incidents, terrorist 
events, natural disasters, hazardous materials incidents, water rescue 
emergencies, high-angle and confined space emergencies, and other 
general public service calls. Despite the invaluable help these first 
responders provide to our communities, they are often put in the 
position of having to choose between their jobs and responding to a 
major disaster.
    USERRA was signed into law by U.S. President Bill Clinton on 
October 13, 1994 in order to protect the civilian employment of non-
full time military service members in the United States called to 
active duty. In spite of these protections, discrimination in the 
workplace persists. According to a Department of Defense report, more 
than 33,000 reserve service members from 2001 to 2005 have complained 
to the agency about a reduction in pay, benefits or even failing to 
receive prompt reemployment as required by law.
    Although Congress amended Title VII of the Civil Rights Act in 1972 
to require employers, in cases of religious discrimination, to provide 
a reasonable accommodation for employees' religious beliefs, 
individuals continue to get fired, demoted or not hired by an employer 
due to their religious affiliation without recourse.
    I thank all of the witnesses for their testimony today and look 
forward to having a robust debate on the abovementioned issues.
                                 ______
                                 
    Mr. Kline. Thank you, Mr. Chairman.
    Good afternoon. Welcome to each of our many, many 
witnesses.
    A particular welcome to Mr. Wood, from Edina, Minnesota. 
Always nice to have a Minnesotan. And we are actually fleeing 
cold weather to come here in this 25-degree weather. So it is 
good to see you.
    We have an exceedingly full schedule this afternoon, and I 
appreciate the chairman's interest in examining this range of 
issues relating to workplace discrimination. Each of these 
issues today is important, both to us as policymakers and to 
the stakeholders and parties whom they impact.
    The topics before the subcommittee this afternoon range 
from broad, sweeping changes in federal employment law to 
focused, almost rifle-shot tweaks to existing statutes. Each 
deserves a thorough examination and thoughtful consideration.
    As a result, I feel compelled to take this opportunity to 
raise my concerns with a number of issues surrounding this 
particular hearing, and I do that, Mr. Chairman, mindful of the 
fact that you and I are getting ready in the near future to 
spend several days together traveling to a remote corner of the 
world and traveling in close quarters.
    Let me say first----
    Chairman Andrews. I get to decide who comes back, John. 
[Laughter.]
    Mr. Kline. We will see. We will see.
    First, I am concerned the subcommittee would convene a 
hearing on issues of such importance at 2:00 in the afternoon 
on a day when members are not scheduled to be back in 
Washington for votes until 6:30 this evening. As my friend and 
colleague from New Jersey knows, it is perfectly within the 
majority's right to schedule hearings as they see fit.
    However, as he also knows the majority leader sets the 
House voting schedule weeks in advance, allowing members to 
make firm commitments back in their district. Members are 
already faced with numerous competing demands on their time and 
plan their business back home in their districts according to 
that schedule. Sometimes a half a dozen of our members are able 
to attend a hearing. Other times, depending on a range of other 
commitments, it is just one or two of us.
    And I remember one occasion, Mr. Chairman, when the only 
person here was Senator Ted Kennedy for over an hour. I am not 
going to let that happen again.
    The choice to attend all or part of a hearing should be for 
the member to determine, and I worry that by scheduling 
hearings on a day when votes do not begin until the evening, we 
do a disservice not only to those members, but to the 
witnesses, some of whom have traveled halfway across the 
country to appear before us today.
    As a matter of substance, I am concerned that today's 
hearing is spreading our focus too thin. As I mentioned 
earlier, some of the items before us represent potentially 
major changes to employment law.
    For example, the wholesale elimination of employment 
arbitration is a proposal that would affect millions of workers 
and employers. Others are more focused on nuanced tweaks to 
statutes which have been on the books for years, such as the 
very specific changes to USERRA that we will hear discussed 
today.
    Some of these proposals have enjoyed broad bipartisan 
support--I am proud to be a co-sponsor on a bill that you have 
on one of these efforts--while others, I expect, will break, as 
is too often the case, very cleanly on party line.
    By the way, Mr. Chairman, I want to take this opportunity 
again to express my displeasure with what I think is an 
institutional problem here. It is not a Republican problem or a 
Democrat problem. Or, actually, it is both. And that is how we 
get witnesses for these hearings.
    Unfortunately, when the Republicans were in the majority, 
two or three times as many of the witnesses were brought 
forward by Republicans, and under a Democrat majority, it is 
two-to-one or three-to-one Democrat witnesses, and I think, on 
some of these issues, we really ought to hear a more balanced 
presentation.
    And so I would hope as we go forward, we can make it work 
to make this a little bit more balanced. I do not know if that 
is the case here today, but it is so often the case.
    I understand that this is an election year, and our 
schedule will be increasingly limited as the year goes on. I 
also understand the chairman's desire to engage the 
subcommittee fully on a range of issues. However, I remain 
concerned we are trying to cram so many disparate issues into 
one hearing with limited opportunity for member engagement.
    And to that end, Mr. Chairman, I was very pleased to hear 
you say that you assume that this is a first step towards 
evaluating this, and we are not going to put a check in the 
block for holding the hearing when we have jammed all this 
together.
    And with those remarks, Mr. Chairman, again, I want to 
welcome the many witnesses, and I yield back the balance of my 
time.

   Prepared Statement of Hon. John Kline, Ranking Republican Member, 
        Subcommittee on Health, Employment, Labor, and Pensions

    Good afternoon, Mr. Chairman, and welcome to each of our witnesses. 
We have an exceedingly full schedule this afternoon, so I will keep my 
remarks brief.
    I appreciate today's hearing, and the Chairman's interest in 
examining a range of issues relating to workplace discrimination. Each 
of the issues we will examine today is important, both to us as 
policymakers, and to the stakeholders and parties whom they impact. The 
topics before the Subcommittee today range from broad, sweeping changes 
in federal employment law to focused, almost ``rifle-shot'' tweaks to 
existing statutes. Each deserves a thorough examination and thoughtful 
consideration.
    As a result, I feel compelled to take this opportunity to raise my 
concerns with a number of issues surrounding this hearing.
    First, I am concerned that the Subcommittee would convene a hearing 
on issues of such importance at two o'clock in the afternoon, on a day 
when Members are not scheduled to be back in Washington for votes until 
six-thirty this evening. As my colleague from New Jersey knows, it is 
perfectly within the Majority's right to schedule hearings as they see 
fit. However, as he also knows, the Majority Leader sets the House 
voting schedule weeks in advance. Members are already faced with 
numerous competing demands on their time and plan their business back 
home in their districts according to that schedule. Sometimes a half 
dozen of our Members are able to attend a hearing. Other times, 
depending on that range of other commitments, it's just one or two of 
us.
    But the choice to attend all or part of a hearing should be for the 
Member to determine. I worry that by scheduling hearings on a day when 
votes do not begin until the evening, we do a disservice not only to 
those Members, but to the witnesses (some of whom have traveled halfway 
across the country) who appear before us.
    As a matter of substance, I am concerned that today's hearing is 
spreading our focus too thin. As I mentioned earlier, some of the items 
before us represent potentially major changes to employment law. For 
example, the wholesale elimination of employment arbitration is a 
proposal that would affect millions of workers and employers. Others 
are more focused or nuanced tweaks to statutes which have been on the 
books for years, such as the very specific changes to USERRA (``you-
serr-uh'') that we will hear discussed today. Some of these proposals 
have enjoyed broad, bipartisan support, while others I expect will 
break very cleanly on party lines.
    I understand that this is an election year, and that our schedule 
will be increasingly limited as the year goes on. I also understand the 
Chairman's desire to engage the Subcommittee fully on a range of 
issues. However, I remain concerned that by trying to cram so many 
disparate issues into one hearing, with limited opportunity for Member 
engagement, we risk becoming ``jacks of all trades, masters of none.''
    I especially raise this point with respect to some of the more 
sweeping policy proposals before us for the first time today. I want to 
make myself perfectly clear--if the Subcommittee or the full Committee 
intends to move forward on any of these proposals--I hope they will not 
suggest that fifteen minutes of testimony, sandwiched between three 
other issues, represents the thorough examination of issues that the 
regular order hearing process is intended to provide.
    In closing, I am concerned with the way this hearing has come 
together today. I hope that going forward we can work together to 
ensure that the important business of this Subcommittee, as well as the 
time and presence of our witnesses, is given the respect it deserves. I 
look forward to today's testimony and yield back my time.
                                 ______
                                 
    Chairman Andrews. I thank my friend.
    I did want to respond to a couple of the comments.
    First of all, I did mean what I said. This should be a 
first step in a very deliberate process because there are a lot 
of complicated issues here.
    Second, as far as the partisan breakdown of witnesses, as I 
read it, there is one very noncontroversial bill, and I do not 
think either of our firefighter representatives would be 
partisan witnesses. There is broad bipartisan support for that 
bill.
    On the religious issue, I understand there are flight-delay 
issues, but we were careful to be sure that Mr. Souder who is a 
co-sponsor of the bill will have an opportunity to speak. I 
understand he cannot make it, but he had that opportunity. So I 
am cognizant of that.
    Third, I would say about the timing, you know, I am 
sensitive to that. The problem that we wrestle with--and the 
gentleman knows this--is that we want to have a hearing that 
covers a lot of topics, or at least cover some topics in depth, 
we get interrupted by the voting schedule, and it can really 
fracture a hearing in such a way we cannot have a very cohesive 
dialogue. So the gentleman is right.
    One tradeoff is that some of the members cannot make it 
because of other commitments. The tradeoff, though, is we do 
have a chance to have an uninterrupted cohesive discussion 
which I hope that we will be able to have today.
    But I do take the gentleman's comments in the spirit of 
cooperation and will attempt to respond accordingly. So we have 
a good trip to faraway places this weekend, too.
    I am going to begin by introducing the witnesses, but we 
have a colleague and friend from Texas who is going to 
introduce one of our witnesses.
    What I would like to do is read the biographies, Mr. Poe, 
of the other witnesses, and I know you have a constituent that 
you want to introduce which we will happily be able to do.
    Michael Foreman, who will be our second witness, is the 
deputy director of legal programs and director of the 
Employment Discrimination Project for the Lawyers Committee for 
Civil Rights under the Law. He is also the Lawyers Committee 
representative on the Leadership Conference of Civil Rights 
Employment Discrimination Task Force.
    Before joining the Lawyers Committee, Mr. Foreman was 
acting deputy general counsel for the United States Commission 
on Civil Rights. He earned his bachelor's degree from 
Shippensburg State College in Pennsylvania and his JD from the 
Duquesne University School of Law.
    Welcome, Mr. Foreman.
    Mr. John Alchevsky is a volunteer firefighter in the Town 
of Jackson Township, Ocean County, New Jersey, home to the Six 
Flags Amusement Park, which I am sure is a challenge for the 
firefighting community--I have been there many times--and a lot 
of good outlet stores, too.
    He is a life member of the Cassville Volunteer Fire 
Company, currently serves as chief of that company. He joined 
the Cassville Company as a junior firefighter when he was 13 
years old, and since then, has served in all the company's 
executive and command staff line officer positions.
    He also serves as a captain in the New Jersey Department of 
Corrections, a very difficult job, an organization he has 
served for over 23 years.
    Welcome to a fellow New Jerseyian, Mr. Alchevsky.
    Alfred Robinson, Jr., is a shareholder with the firm of 
Ogletree Deakins, specializing in governmental affairs, labor 
and employment law, and litigation. Before joining the Ogletree 
firm, he was the acting administrator of the Wage and Hour 
Division of the United States Department of Labor. Mr. Robinson 
also served as a member of the South Carolina House of 
Representatives from 1992 to 2002.
    Mr. Wilson, I am sure, would be pleased to know that.
    And Mr. Robinson received his Bachelor of Science degree 
from Washington and Lee University in 1977 and his JD from the 
University of South Carolina in 1981.
    Welcome, sir.
    Philip C. Stittelburg--excuse me, Chief--is chairman of the 
National Volunteer Fire Council. He is a member of the 
Wisconsin State Firefighters Association and has served as 
chief of the LaFarge, Wisconsin, Fire Department for 25 years.
    Chief Stittelburg is a legal counsel to the NVFC, the 
LaFarge Fire Department, and the Wisconsin State Firefighters 
Association. He previously served as NVFC foundation president 
for 12 years.
    Chief, welcome. It is good to have you.
    Michael Serricchio is a former employee of Wachovia Bank 
and a sergeant in the Air Force Reserve. Mr. Serricchio's unit 
was called to duty shortly after September 11, 2001, and he 
served a 2-year tour in Saudi Arabia.
    Welcome, and thank you for your service to our country.
    Mr. George Wood is an employment specialist attorney with 
the law firm of Littler Mendelson where he focuses on 
discrimination and other litigation, client counseling and 
training, and other labor law issues. Mr. Wood served as law 
clerk to the honorable Douglas K. Amdahl, chief justice of the 
Minnesota Supreme Court.
    Mr. Wood earned his BA from St. Olaf College in 1982 and is 
JD from the William Mitchell College of Law.
    Mr. Wood, welcome.
    And, finally, Ms. Kathryn Piscitelli?
    Ms. Piscitelli. Yes.
    Chairman Andrews. I got it. It is a New Jersey name.
    She is a labor and employment lawyer with the firm of Egan 
Lev & Siwica in Orlando, Florida. Ms. Piscitelli is also a 
member of the Florida Chapter of the National Employment 
Lawyers Association, and she served as chair of the National 
NELA's USERRA, meaning the Soldiers and Sailors Relief Act, 
Task Force in 2004.
    Ms. Piscitelli has spoken on numerous occasions about 
USERRA and fair employment practices. She earned her BS from 
Northern Illinois University in 1975 and--another Duquesne 
lawyer--earned her JD from Duquesne University in 1983. This is 
the day of the Iron Dukes on the panel, I guess, today.
    Now, before we get to Representative Poe's introduction, 
the written statements of each of the witnesses have been 
entered into the record without objection. So we have had the 
chance to read what you have had to say.
    We would ask if you would provide us with a succinct 5-
minute summary of your point of view. There is a box of lights 
in front of you. When the green light is on, it means you are 
on. When the yellow light goes on, it means you have 1 minute 
to wrap up your testimony. When the red light goes on, we would 
ask you to wrap up as quickly as you can.
    The reason we would like to do this is we have a lot of 
witnesses today, we want to hear from each of them, and we want 
the members present to be able to ask questions and engage in 
dialogue with the witnesses.
    So we are very pleased to recognize--I guess it was Judge 
Poe before he came here. Is that correct?
    Mr. Poe. I have been called worse, Mr. Chairman.
    Chairman Andrews. Sherriff or a judge?
    Mr. Poe. Judge, yes.
    Chairman Andrews. In Texas. And he has done a lot of good 
work on some criminal justice issues, I know, since he has 
joined the House.
    Second term for you, Judge, is it?
    Mr. Poe. That is correct.
    Chairman Andrews. And he is going to introduce Ms. Jones 
who is our first witness.
    So, after that happens, Ms. Jones, you are welcome to start 
your testimony.
    Mr. Poe. Thank you, Mr. Chairman, Ranking Member Kline. I 
appreciate the opportunity to be here.
    Thank you for allowing me to introduce a brave, young 
woman, and her name is Jamie Leigh Jones.
    Two-and-a-half years ago, Jamie Leigh Jones--her dad called 
my office in Texas because I represent her and her dad here in 
the United States Congress. Her dad was distraught and informed 
me that 20-year-old Jamie was drugged and raped by her KBR 
coworkers in Iraq and that her own employer was holding her 
hostage for more than 24 hours. Jamie's dad called me and asked 
for immediate assistance.
    My staff and I contacted the United States Department of 
State that oversees citizen services, and within 2 days, the 
State Department dispatched two agents from the U.S. Embassy in 
Baghdad, rescued Jamie, and brought her back home, and she has 
retrieved much medical treatment since.
    Before Jamie went to Iraq to work for Kellogg Brown & Root, 
she signed an 18-page employment contract. One of the 18 pages 
included a binding arbitration clause which stated in part, 
``You agree that you will be bound and accept as a condition of 
your employment that any and all claims that you might have 
against your employer, including any and all personal injury 
claims arising in the workplace, must be submitted to binding 
arbitration instead of the United States court system.''
    It is argued that this clause requires a sexual assault 
victim, such as Jamie Leigh Jones, to arbitrate with KBR crimes 
committed against her by other KBR employees.
    When she signed the contract, this 20-year-old young 
person, Jamie, was interested in only two things, when would 
she start working and how much would she be paid. Jamie did not 
have an attorney present to advise her of the content and the 
full meaning of this 18-page document, especially the binding 
arbitration clause, nor should she need an attorney present. An 
employment contract should be easily understood by any 
layperson seeking a job.
    Since Jamie returned to the United States, the perpetrators 
of this crime still have not been prosecuted by our government, 
so Jamie now hopes that her offenders can be held liable in 
civil court.
    Jamie's case is not the typical employment dispute. Her 
civil case is based on underlying criminal accusations and 
employer nonfeasance. It is one thing to arbitrate employment 
disputes, but I want to be clear that a rape victim should not 
be subject to an employment arbitration contract with her 
employer.
    As a former judge, I know the best way to solve these types 
of accusations is in a courtroom with a jury. This one clause 
should not prevent Jamie from obtaining justice that she needs 
and deserves. Her case should be aired in a courtroom, not in 
the back room of arbitration.
    Thank you, Mr. Chairman.
    I would like to introduce my constituent, Jamie Leigh 
Jones.
    Chairman Andrews. Well, thank you, colleague, Mr. Poe.
    And, Ms. Jones, we want to welcome you to the committee. We 
are very sorry for the ordeal that you have experienced----
    Mr. Jones. Thank you.
    Chairman Andrews [continuing]. And we are impressed by the 
courage and integrity you have to come here today and tell us 
about it. So welcome.

   STATEMENT OF JAMIE LEE JONES, FORMER HALLIBURTON EMPLOYEE

    Mr. Jones. Thank you.
    Good afternoon, Mr. Chairman and members of the committee. 
I want to thank you for having me here as well.
    I went to the green zone in Baghdad, Iraq, on July 25, 
2005, in support of Operation Iraqi Freedom.
    Halliburton, my employer, prior to leaving the U.S., 
promised me that I would live in a trailer equipped to house 
two women with a shared bathroom. Upon arrival at Camp Hope, I 
was assigned to a predominantly all-male barrack. I complained 
about my living conditions to Halliburton's management and 
asked to be moved into my promised living quarters. These 
repeated requests were denied.
    On the fourth day in Iraq, I noticed the woman I was 
replacing and several others were outside. They called me over 
and invited me to come sit with them. When I did, I was offered 
a drink. The men, identified only as Halliburton firefighters, 
told me that one of them can make a good drink. So I accepted.
    When he handed it to me, he told me, ``Do not worry. I 
saved all my roofies for Dubai,'' or words very similar to 
that. I thought that he was joking and felt safe with my 
coworkers since we were all on the same team. I took two sips 
from the drink.
    When I awoke the next morning, I was extremely sore between 
my legs and in my chest. I was groggy and confused. I went to 
the restroom, and while there, I realized that I had bruises 
between my legs and on my wrists. I was bleeding between my 
legs.
    When I returned to my room, a man was lying in the bottom 
bunk of my bed. I asked him if he had sex with me and he said 
that he did. I asked if it had been protected, and he said no. 
I still felt the effects of the drug from the drink and was now 
very upset at the confirmation of my rape. I dressed and left 
for help.
    I reported this incident to the operations coordinator who 
took me to the KBR clinic. The clinic then called KBR security 
who took me to the Army hospital. There, the Army doctor Jody 
Schulz performed a rape kit.
    Dr. Schulz confirmed that I had been penetrated both 
vaginally and anally and that I was quite torn up down there. 
She indicated that based upon the physical damage to my 
genitalia that it was apparent that I had been raped. I watched 
her give my rape kit to the KBR security personnel as I was, 
again, turned over to these men.
    KBR security took me to a container and imprisoned me. Two 
armed guards were stationed outside my door. I was placed 
inside and not allowed to leave. I asked for a phone to contact 
my father, and that was denied. I was not provided food or 
drink.
    I begged one of the guards to let me use a phone until he 
finally shared his cell phone with me so that I could call my 
father back in Texas. My father then contacted my congressman, 
Ted Poe. Congressman Poe took actions to get me out of Iraq. 
That is when the State Department officials came to my rescue.
    I was later interviewed by Halliburton supervisors, and it 
was made clear to me that I had essentially two choices: stay 
and get over it or go home with no guarantee of a job either in 
Iraq or back in Houston. Because of the severity of my 
injuries, I elected to go home, despite the obvious 
termination.
    Once I returned home, I sought medical attention for both 
psychiatric and physical evaluations. I was diagnosed with 
post-traumatic stress disorder. Due to the pain in my chest, I 
went to several surgeons, and each discovered that my breasts 
were disfigured and my pectoral muscles had been torn. This 
injury required me to have reconstructive surgery.
    I turned to the civil court for justice, in part because 
the criminal courts have failed to even file an indictment at 
this point.
    Currently, there are approximately 180,000 military 
contractors in Iraq. Approximately 20,000 of those contractors 
are females. Fifty percent of all Americans on military bases 
in Iraq are contractors. Contractors have been immune from both 
Iraqi law and the Uniform Code of Military Justice. There has 
not been a single complete prosecution of a criminal contractor 
to date.
    When I decided to pursue a civil suit, I was informed that 
my bulky employment contract included an arbitration clause. I 
learned that I had signed away my rights to a public trial and 
justice. When there are no laws to protect Army contractors who 
are working abroad, what is to stop these people from taking 
the law into their own hands? The arena harbors a sense of 
lawlessness.
    Victims of crime perpetrated by employees of taxpayer-
funded government contractors in Iraq deserve the same standard 
of treatment and protection governed by the same laws, whether 
they are working in the U.S. or abroad. Army contracting 
corporations harbor and ignore criminal activities in Iraq, 
which, under the arbitration clause, protects them and does not 
hold corporate accountability when a crime has been committed.
    My case was not an isolated incident. Since no actions of 
law could help other victims at this point, I started the Jamie 
Leigh Foundation. To date, 38 women have come forward through 
my foundation, and a number of them shared their tragedies in 
confidence because they were silenced by provisions of their 
arbitration agreements.
    Unfortunately, arbitration is stacked in favor of business, 
making it harder for individuals to prevail in a dispute, and 
that is not just and fair to the patriotic, hardworking 
employees. How can this country not protect us contractors who 
have left our families to help our country in an effort to 
build democracy overseas when we are victimized criminally?
    Originally, this was a controlled way to expedite 
resolution of disputes, but that is not the situation now, and 
it is imperative the system be revised. My goal is to ensure 
all American civilians who become victims of violent crimes 
while abroad have the right to justice before a judge and jury.
    [The statement of Ms. Jones follows:]

    Prepared Statement of Jamie Leigh Jones, Former Halliburton/KBR 
                                Employee

    Good Afternoon, Mr. Chairman and members of the committee. First 
and foremost, I would like to thank all the members of congress who 
have united together in support of holding Army Contractors accountable 
under enforceable law.
    I went to Camp Hope, located in the ``Green Zone'', Baghdad, Iraq 
on July 25, 2005, in support of Operation Iraqi Freedom. Halliburton/
KBR, my employer, prior to leaving the U.S., promised me that I would 
live in a trailer equipped to house two women, with a shared bathroom.
    Upon arrival at Camp Hope, I was assigned to a predominantly all-
male barrack. According to documents provided by Halliburton/KBR in 
response to my EEOC complaint, approximately 25 women to more than 400 
men were documented to be housed. I never saw a woman at the barrack. I 
did find myself subject to repeated ``cat-calls'' and men who were 
partially dressed in their underwear while I was walking to the 
restroom, on a separate floor from me. The EEOC credited my testimony 
with respect to this matter. That Determination Letter is attached to 
this statement as an Exhibit.
    I complained about my living conditions to Halliburton/KBR 
management and asked to be moved into my promised living quarters. 
These repeated requests were denied.
    On the fourth day in Iraq, I received a call on my cell phone. The 
reception in the barracks was bad, so I stepped outside to take the 
call. Afterwards, I noticed that the woman I was replacing (her 
contract had expired and she was returning back to U.S.) and several 
others were outside. They called me over and invited me to come and sit 
with them. When I did, I was offered a drink. The men (identified only 
as Halliburton/KBR firefighters) told me that one of them could make a 
really good drink and so I accepted. When he handed it to me, he told 
me, ``Don't worry, I saved all my Rufies for Dubai,'' or words very 
similar to that. I thought that he was joking, and felt safe with my 
co-workers. I was naive in that I believed that we were all on the same 
team. I took two sips or so from the drink.
    When I awoke the next morning, I was extremely sore between my 
legs, and in my chest. I was groggy and confused, but did not know why 
at that time. I tried to go to the restroom, and while there I realized 
that I had many bruises between my legs and on my wrists. I was 
bleeding between my legs. At that point in time, I suspected I had been 
raped or violated in some way. When I returned to my room, a man was 
laying in the bottom bunk of my bed.
    I asked him if he had sex with me, and he said that he did. I asked 
if it had been protected, and he said ``no.'' I was still feeling the 
effects of the drug from the drink and was now very upset at the 
confirmation of my rape. I dressed and left for help.
    I reported this incident to an Operations coordinator, who took me 
to the KBR clinic. The clinic then called KBR security, who took me to 
the Army CASH (Combat Army Support Hospital). There, the Army doctor, 
Jodi Schultz, M.D, performed a rape kit.
    Dr. Schultz confirmed that I had been penetrated both vaginally and 
anally, and that I was ``quite torn up down there.'' She indicated that 
based upon the physical damage to my genitalia, that it was apparent 
that I had been raped. Dr. Schultz took photographs, and administered a 
rape kit. I watched her give this rape kit to the KBR security 
personnel as I was again turned over to these men.
    These men then took me to a trailer and then locked me in. Two 
armed guards (Ghurka's) were stationed outside my door. I was placed 
inside, and not allowed to leave. I had my cell phone, but it would not 
call outside of Baghdad. I asked for a phone to contact my father, and 
this was denied. I was not provided food or drink (although there was a 
sink, I did not trust it to drink from).
    I begged and pleaded with one of the Ghurka guards until he was 
finally willing to share his cell phone with me so that I could call my 
father, back in Texas. I had begged him for that until he finally 
agreed. My father then contacted my Congressman, Ted Poe. Congressman 
Poe then took actions to get me out of the Iraq.
    Once State Department officials (Matthew McCormick and Heidi 
McMichael) saved me from the container I was placed in a ``safe'' 
trailer, and I requested that Heidi stay with me. She did.
    I was later interviewed by Halliburton/KBR supervisors, and it was 
made clear to me that I had essentially two choices: (1) ``stay and get 
over it,'' or (2) go home with ``no guarantee of a job,'' either in 
Iraq or back in Houston. Because of the severity of my injuries, I 
elected to go home, despite the obvious threat of termination.
    Once I returned home, I sought medical attention for both 
psychiatric and physical evaluation. I was diagnosed with Post 
Traumatic Stress Disorder (PTSD).
    I also saw Sabrina Lahiri M.D., who found that my breasts were 
asymmetrically disfigured, and that my pectoral muscles had been torn. 
She wanted to do reconstructive surgery, and I sought ``second 
opinions'' from several surgeons regarding that surgery. Even the 
doctor, Halliburton forced me to see, reviewed my injuries and agreed 
that they were due to forced trauma. He expressed anger and disgust. 
Dr. Ciaravino then performed the first reconstructive surgery.
    I still require additional medical treatment, including another 
reconstructive surgery, and I continue to go to counseling 3 times per 
week.
    I turned to the civil court for justice, in part, because the 
criminal courts have failed to even file an indictment at this point. 
Currently there are approximately 180,000 military contractors in Iraq. 
Approximately 20,000 of those contractors are females. 50% of Americans 
on military bases in Iraq are contractors. Contractors have been immune 
from both Iraqi law and the Uniformed Code of Military Justice 
therefore there is no law governing them. There has not been a single 
complete prosecution of a criminal contractor to date.
    When I decided to pursue a civil suit, I was informed that within 
my thirteen-page employment contract that had an additional five pages 
attached, included an arbitration clause. At this point in my life I 
had no idea what an arbitration was other than a tiny paragraph 
included in the lengthy document that mandated that I could not get 
justice from the civil court system. I learned that I had signed away 
my right to a trial by jury. I thought this right was guaranteed by the 
seventh amendment to the United States Constitution that specifically 
states, ``In Suits at common law, where the value in controversy shall 
exceed twenty dollars, the right of trial by jury shall be preserved''. 
When there are no laws to protect army contractors who are working 
abroad (from violent crimes), what is to stop people from taking the 
law into their own hands? The arena harbors a sense of lawlessness. The 
forced arbitration clause in army contractor's contracts, prove to 
protect the criminals of violent crimes, rather than enforce they be 
held accountable by a judge and jury.
    Victims of crime perpetrated by employees of taxpayer-funded 
government contracts in Iraq deserve the same standard of treatment and 
protection governed by the same laws whether they are working in the 
U.S. or abroad.
    Army contracting corporations harbor and ignore criminal activities 
in Iraq, which under the arbitration clause agreement, protects them 
and does not hold corporate accountability when a crime has been 
committed. This clause also paves the way for corporations to not be 
held accountable under criminal law. My case wasn't an isolated 
incident. Since no actions of law could help other victims at this 
point, I started ``The Jamie Leigh Foundation'' 
www.jamiesfoundation.org. To date, thirty-eight women have come 
foreword through my foundation. A number of them shared their tragedies 
in confidence because they were silenced by provisions of their 
arbitration agreements.
    The arbitration proceeding is private and discrete and the outcome 
of arbitration cannot be disclosed to the public. Unfortunately, 
arbitration is stacked in favor of businesses, making it harder for 
individuals to prevail in a dispute and that is not just, and unfair to 
the patriotic hard-working employees. How can this Country not protect 
us contractors, who have left our families to help our country in an 
effort to build democracy overseas, when we are victimized criminally? 
Originally, this was a controlled way to expedite resolution of 
disputes but that's not the situation now and it is imperative the 
system be revised. My goal is to ensure all American civilians who 
become victim of violent crimes while abroad, have the right to justice 
before a judge and jury.
                                 ______
                                 
    Chairman Andrews. Well, Ms. Jones, thank you. Because this 
hearing is being made available around the country and around 
the world on the Internet, a lot of people are going to get to 
hear the story you just told.
    Mr. Jones. Right.
    Chairman Andrews. I deeply regret that you had to tell it, 
but I think we all respect and admire your courage and 
integrity for telling it. So thank you very, very much.
    Mr. Jones. Thank you.
    Chairman Andrews. And we will get to questions at the end 
of the panel.
    Mr. Poe, I just wanted to invite you, if you would like to, 
to come join the dais. You are welcome. But we do have another 
witness that we are going to ask to assume the seat that you 
are in. You are certainly welcome to stay and join us on the 
dais, should you choose to do so.
    Mr. Poe. Thank you, Mr. Chairman.
    Chairman Andrews. Okay.
    I would ask if Mr. de Bernardo could come forward and take 
that seat.
    And, Mr. de Bernardo, we are going to ask you to be next in 
line to testify, if you would not mind.
    Mr. de Bernardo. Thank you.
    Chairman Andrews. Mark de Bernardo is a partner with the 
law firm of Jackson Lewis, a labor and employment firm. In the 
past, Mr. de Bernardo has served as special counsel for 
domestic policy and director of labor law for the U.S. Chamber 
of Commerce. He received his BA from Marquette University in 
1976 and his JD from the Georgetown University Law Center in 
1979.
    Mr. de Bernardo, welcome. Your testimony has been included 
as a part of the record, your written testimony, and we would 
now give you 5 minutes to summarize it orally. Welcome.

   STATEMENT OF MARK DE BERNARDO, PARTNER, JACKSON LEWIS, LLP

    Mr. de Bernardo. Thank you, Chairman Andrews, Ranking 
Minority Member Kline, members of the subcommittee.
    I appreciate this opportunity to testify in strong support 
of the use of ADR, Alternative Dispute Resolution, and the use 
of mediation and arbitration generally in employment as 
effective alternatives to litigation and in opposition to 
Subtitle C, the arbitration prohibition section of the H.R. 
5129.
    I am executive director and president of the Council for 
Employment Law Equity. I am also senior partner and chair of 
the ADR practice group at Jackson Lewis. Jackson Lewis is an 
employment law firm of more than 450 lawyers in 34 cities, and 
I appreciate this opportunity to be before you today.
    Jackson Lewis has long been a strong supporter of effective 
and equitable ADR programs as an alternative to costly, time-
consuming, deleterious, relationship-destructive litigation. I 
strongly believe that if you want justice in American today, go 
to arbitration. Arbitrators are more predictably balanced, 
unbiased, fair, and neutral than our politically appointed 
judges and randomly-selected juries in our litigation system.
    ADR employment programs are flourishing, and when 
implemented appropriately, are decisively both pro-employee and 
pro-employer. Like the AFL-CIO and organized labor in general, 
my law firm has highly supported ADR and its impacts of less 
litigation and less legal fees because it is what is best for 
many of our clients and for their employees and because it is 
the right thing to do.
    The seminal question is: Should employers and employees be 
able to engage in mediation and mandatory binding arbitration 
of employment disputes as an alternative to litigation? The 
seminal answer is: Absolutely. ADR employment programs, when 
implemented appropriately, as mentioned, are decisively in 
employees' best interests.
    In my testimony, I discuss this. There are plenty of 
studies, statistics. Overall, the research is very, very much 
in favor of the use of ADR. The use of ADR in employment is 
common. It is increasing. It is a means of avoiding litigation, 
addressing more employee issues, resolving more amicably these 
concerns.
    Given the cost, delays, and divisiveness of employment 
litigation in America today, a more sensible and conciliatory 
approach is preferable for employees and for employers. The net 
result of ADR is more employee complaints are received and 
resolved--many more.
    Secondly, employee complaints are resolved sooner with less 
tension.
    Third, there is less turnover. There is no question that 
employment litigation is an employment relationship destroyer 
whereas arbitration is an employment relationship preserver. So 
there is less turnover, less likely and more favorable 
preservation of employee relationships.
    Fourth of the sixth, improve morale. Employers are better 
employers because they identify more problems in the workplace 
and address them at an earlier stage.
    Number five, more effective communication and enhanced 
constructive input by the employees into their companies.
    And, finally, better workplaces. Employers are better 
employers as a result of arbitration.
    If there are reforms which are necessary and appropriate, 
certainly they should be considered, and the CEOE and Jackson 
Lewis would support and welcome such reforms. What is not 
needed is a wholesale and retroactive dismantling of common, 
effective, and widespread ADR and employment programs that work 
and work well. The cost to employees and employers and the 
interest of justice and sound employee relations would be 
enormous and extremely destructive.
    I would also like to point out that 70 percent of those 
individuals who participated in mandatory binding arbitration 
say that they support it and would do it again. Eighty-three 
percent of the public in a public opinion poll, as discussed in 
my testimony, favor binding arbitration, and 86.2 percent of 
lawyers who have practiced in this area, both plaintiffs' 
lawyers and defense lawyers also support it.
    I dare say that most any legislator would accept approval 
ratings of 70 percent, 83 percent, and 86.2 percent. There is 
overwhelming support for ADR by those who are most involved and 
those who practice in this area.
    The supporters of ADR include the judiciary, the federal 
government. It is very, very common in federal government. 
Many, many agencies and branches of the armed services use 
binding arbitration as part of their practice.
    Practicing lawyers, as I mentioned, favor it, 86.2 percent. 
Employees favor it. A public opinion poll found 83 percent of 
employees favor arbitration. Parties to arbitration favor it. A 
survey of more than 600 adults who participated in binding 
arbitration, 70 percent of----
    Chairman Andrews. Excuse me, Mr. de Bernardo. If you could 
just wrap up. The red light is on.
    Mr. de Bernardo. Okay. So, with that, I cannot help but 
take one quote from my conclusion, which is, ``When will 
mankind be convinced and agree to settle the difficulties by 
arbitration?'' That quote was issued by Ben Franklin more than 
200 years ago. I agree with him.
    It is a very big part of American society right now. There 
would be very draconian consequences if Subtitle C were 
enacted.
    Thank you.
    [The statement of Mr. de Bernardo may be accessed at the 
committee website's following address:]

    http://edlabor.house.gov/testimony/2008-02-12-MarkdeBernardo.pdf

                                 ______
                                 
    Chairman Andrews. Thank you, Mr. de Bernardo. We appreciate 
you being here.
    Mr. Foreman?

     STATEMENT OF MICHAEL FOREMAN, CO-CHAIR OF EMPLOYMENT 
 DISCRIMINATION TASK FORCE, LEADERSHIP COUNCIL ON CIVIL RIGHTS

    Mr. Foreman. Chairman Andrews, Ranking Member Kline, 
members of the committee, thank you for taking up this 
important issue.
    My name, again, is Michael Foreman. I am here testifying on 
behalf of the Leadership Conference on Civil Rights, which is a 
coalition of over 200 national organizations that is dedicated 
to providing equal opportunity to all members of our society.
    Given the fact that this committee is taking up this issue, 
it is obvious that you understand the importance of this issue, 
but I do not want to put too small a point on that.
    In 1979, about 1 percent of employers in this country had 
pre-dispute--and I do want to focus on pre-dispute--binding 
arbitration clauses for employment. In 2007, that figure had 
moved to 25 percent. If that trend continues, which my 
colleague here indicated it will, in the very foreseeable 
future, we are going to see a legal system where civil right 
employment disputes are not going to be decided by judges who 
are publicly appointed or by juries of our peers, which is the 
bedrock of our society, but they are going to be decided by a 
small group of arbitrators, largely paid by employers, in 
confidential settlements with no public accountability.
    The current issue before this committee--and I want to 
stress this--is not whether there should be binding arbitration 
in employment disputes. We support binding arbitration of 
employment disputes, when it is voluntary, when it is knowing, 
and when there is, in fact, a dispute to be arbitrated.
    What we do not support is pre-dispute binding arbitration 
that are hidden in applications, that are hidden in employee 
handbooks, or forced on to employees, and that is the reason we 
support the provision in H.R. 5129.
    The sad reality for many of the millions of clients that 
our organizations represent is there really is no choice. There 
is no choice in what they can do. In making good social policy, 
we cannot divorce ourselves from reality.
    Do any of us really, really believe that most blue-collar 
workers, if they walk in and refuse to sign the application 
because it has a binding arbitration clause, that they will get 
that job? Or in Ms. Jones's case, do any of us really believe 
if she had told Halliburton, ``I am sorry. I cannot sign that 
agreement,'' that she would have gotten the job?
    Our workers' choices are between putting food on the table 
or possibly getting health insurance or possibly being able to 
pay their mortgage. That is not a real choice, and that is all 
this bill is attempting to do in this provision. The provision 
is to provide that choice.
    In practice, mandatory arbitration agreements are not 
supposed to change substantive rights. They are only supposed 
to change the forum in which they are doing it. But that is 
also sadly not true. In the detailed statement, we have 
addressed that. It is not insignificant to take away the right 
to be heard in court or the right to be heard by a jury.
    In some of the statistics we have provided that are 
provided by the American Arbitration Association, for 
arbitration dealing with Pfizer for a specific time period, the 
decision rate was a 97 percent win rate for the employer. For 
Halliburton, it was an 82 percent. They prefer arbitration 
because they win in arbitration most of the time.
    It is one thing to permit employees to willingly give that 
up. It is another thing to take that choice away before there 
is even a dispute to be taken away.
    I do not need to spend a lot of time talking about this in 
the abstract. You just heard testimony from Ms. Jones about 
probably one of the ugliest employment situations that you can 
imagine, but let's think about the consequences when she 
returned from helping serve our country, and that ugliness is 
revisited by the fact that she cannot have the right that this 
Congress has provided to her exercised in a court of law or 
before a jury. What type of ugliness is that? And that is 
something that we want to correct.
    The Supreme Court has virtually invited Congress 
repeatedly, through the Waffle House, through the Gilmore 
decision, and others, to specifically tell them, ``If you do 
not want these subject to pre-dispute arbitration, then tell us 
so.''
    In fact, what we are asking you to do is accept that 
invitation. We are not asking to ban binding arbitration across 
the board, but what we are asking you to do is ban it in a pre-
dispute and then only if it is willing.
    And I will be available to answer questions and provide any 
other information.
    Thank you.
    [The statement of Mr. Foreman follows:]

  Prepared Statement of Michael Foreman, on Behalf of the Leadership 
                       Conference on Civil Rights

    Chairman Andrews, Ranking Member Kline and members of the 
Subcommittee. Thank you for convening this hearing, which in part will 
address the issue of mandatory arbitration of employment disputes and, 
ultimately, how much we as a society value the civil rights of our 
workers. Pre-dispute mandatory arbitration is an issue that that is not 
only timely, but critical as we, as a nation, continue to struggle to 
ensure equal employment opportunities for all. My name is Michael 
Foreman and I am testifying today on behalf of the Leadership 
Conference on Civil Rights (LCCR). The Leadership Conference on Civil 
Rights (``LCCR'') is a coalition of more than 200 national 
organizations committed to the protection of civil and human rights in 
the United States.\1\ Founded in 1950, LCCR is the nation's oldest, 
largest, and most diverse civil and human rights coalition. LCCR's 
members are dedicated to preserving the interest of individuals in 
raising issues of unlawful discrimination and the interest of society 
in having those issues brought to light. Collectively, LCCR's members 
represent millions of our nation's most vulnerable workers.
    In addition to serving as the Co-Chair of the Leadership 
Conference's Employment Task Force, I am also the Director of the 
Employment Discrimination Project at the Lawyers' Committee for Civil 
Rights Under Law, which is one of LCCR's member organizations. The 
Lawyers' Committee for Civil Rights Under Law (the ``Lawyers' 
Committee'') is a nonprofit civil rights organization that was formed 
in 1963 at the request of President Kennedy in order to involve private 
attorneys throughout the country in the national effort to insure the 
civil rights of all Americans. Its Board of Trustees includes several 
past Presidents of the American Bar Association, past Attorneys General 
of the United States, law school deans and professors and many of the 
nation's leading lawyers. The Lawyers' Committee seeks to ensure that 
the goal of civil rights legislation, to eradicate discrimination, is 
fully realized.
    During the course of my career, I have represented employees and 
employers, as well as federal, state, and local governments. I have 
handled employment matters through all phases of their processing from 
the administrative filing, at trial and through appeal.\2\ This hands-
on experience informs my analysis of the use of mandatory arbitration 
for employment disputes.
    My testimony will address three topics: (1) the involuntary nature 
of many pre-dispute arbitration agreements (2) the ways in which 
mandatory arbitration clauses subvert employees' substantive rights, 
and (3) why it is necessary to curtail the use of pre-dispute mandatory 
arbitration.
    It is important to recognize at the outset that pre-dispute 
mandatory arbitration is not just an employment issue or a civil rights 
issue; it is an issue that cuts to the core of this country's ideals of 
equality and due process.
    For over half of a century, our society and this Congress has 
struggled with issues concerning equal employment opportunity and 
attacked the problem of employment discrimination through significant 
legislation including Title VII, the Civil Rights Act of 1991, the 
Americans with Disabilities Act, the Age Discrimination in Employment 
Act, and the Equal Pay Act, to name a few. In keeping with our national 
commitment to equality, Congress created a framework for enforcing 
these rights though individual lawsuits, litigation by the Attorney 
General, and the efforts of federal agencies, like the Equal Employment 
Opportunity Commission, tasked with enforcing laws against employment 
discrimination. In doing so, Congress established a plan for combating 
discrimination through an open, fair process governed by the rule of 
law and administered by impartial judges and juries that allowed for 
public accountability. In fact, as recently as 1991, Congress acted to 
protect employees by codifying their right to a jury trial in Title VII 
cases. It is hard to envision a justice system that allows employers to 
strip employees of the very rights Congress has worked tirelessly to 
protect, especially through pre-dispute mandatory arbitration clauses 
hidden in employment applications or employee handbooks.
    While one can debate whether permitting binding arbitration for any 
civil rights claim is good public policy, we are not here to resolve 
that issue. The current question before this subcommittee is not 
whether there can be binding arbitration but when binding arbitration 
is appropriate. We support alternative dispute resolution agreements, 
including binding arbitration agreements, that are adopted knowingly 
and voluntarily after a dispute has emerged. What we oppose, and what 
Section 421-424 of H.R. 5129 (Civil Rights Act of 2008) prohibits, are 
binding mandatory arbitration clauses that employees are forced to 
submit to long before any dispute has arisen.
Many Employees Have No Choice In Whether To Submit Their Civil Rights 
        Claims To Pre-Dispute Mandatory Arbitration
    Seeing a way to minimize the costs associated with violating civil 
rights laws, employers are increasingly turning to pre-dispute 
mandatory arbitration. In 1979, only 1 percent of employers used 
arbitration for employment disputes.\3\ According to most recent 
estimates, around 15% to 25% of employers nationally have adopted 
mandatory employment arbitration procedures.\4\ The stark reality is 
that all too often, the employees have no choice but to surrender their 
rights and accept mandatory arbitration. Many employees do not have the 
luxury of choosing when, and under what conditions to sign arbitration 
agreements, because employers often make such agreements a job 
requirement. Employees who refuse to sign a mandatory arbitration 
agreement could lose their current jobs or be denied a new position.
    In formulating good public policy we must not divorce ourselves 
from the reality of life for many Americans; if a blue-collar worker 
refuses to sign a job application containing a pre-dispute mandatory 
arbitration clause, or a separate arbitration agreement included in a 
stack of documents piled before them on their first day of the job, do 
you honestly think the employee would get the job? \5\ We all know what 
would happen, the employer would just go on to the next applicant who 
signed the arbitration agreement, regardless of whether that worker 
knew he or she was agreeing to submit his or her civil rights claims to 
mandatory arbitration or what that really meant.
    For many employees, the only real choices they face are ones like:
     Passing up a paycheck that would help put food on the 
table or signing a job application stating that one's signature 
constitutes an agreement to binding arbitration of any dispute;
     Risking foreclosure from unpaid mortgage bills or agreeing 
to submit their supposedly federally guaranteed civil rights to 
mandatory arbitration; or
     Giving up the chance to finally get health care benefits 
or signing away their right to a jury trial
    These employees do not really have a choice at all.
    Employees also have no way of knowing when a provision of an 
arbitration agreement is actually prohibited by law. Most often, 
employees will simply submit to the terms of the contract without 
realizing that they could challenge the legality of certain unfair or 
impermissible conditions.
    Having had no choice but to accept mandatory arbitration, many 
employees are stuck trying to enforce their federally protected civil 
rights in a system selected and dominated by their employer. These are 
the workers the Leadership Conference and the Lawyers' Committee 
represent. It is their ability to choose that Section 421-424 of H.R. 
5129 is designed to protect.
In Practice, Pre-Dispute Mandatory Arbitration Agreements Supplant 
        Employees' Substantive Rights
    While the Supreme Court has noted that mandatory arbitration 
agreements should only alter the forum in which employment disputes are 
resolved, not the substance of employees' civil rights, this 
distinction is not borne out in practice. In reality, by stripping away 
procedural rights, the underlying substantive right is undermined or 
even eviscerated. Mandatory arbitration agreements often lack the 
safeguards, accountability, and impartiality of the system Congress 
created, allowing employers to bypass some of the most important 
protections built into anti-discrimination legislation such as the 
Civil Rights Act of 1964 and the Civil Rights Act of 1991.
    One of the most glaring ways in which mandatory arbitration 
agreements strip employees of their substantive rights is by denying 
them their day in court before an impartial judge and a jury of their 
peers. Mandatory arbitration forces employees to forego the traditional 
court system and present their claims before arbitrators who are not 
required to know or follow established civil rights and employment law. 
Private arbitrators, who are selected by the employer, also depend on 
the employer for repeat business, and thus have an incentive to rule in 
favor of the employer. In fact, despite the clear conflict of interest 
that arises, employers sometimes finance the arbitration. In such 
cases, the arbitrator may feel obliged to rule in favor of the party 
that is paying the bill.
    Tellingly, by way of examples, between January 1, 2003 and March 
31, 2007, AAA's public records show that AAA held 62 arbitrations for 
Pfizer, of which 29 reached a decision. Of these 29 cases, the 
arbitrator found for the employer 28 times--a decision rate of 97 
percent for the employer. Similarly, Halliburton's win rate was 32 out 
of 39 cases that went to decision--an 82 percent win rate for the 
employer.\6\
    Employees' rights are diminished by mandatory arbitration in many 
ways, including but not limited to:
     Limitation or prohibition of pre-trial discovery, thus 
impeding employees' ability to use depositions and discovery requests 
to obtain information that would support their claims. As the employee 
has the burden of proof, this limitation is particularly troublesome. 
This lack of discovery benefits the party with greater access to 
evidence and witnesses. Since employers generally have control over 
relevant documents and the employees involved, arbitration's limited 
discovery provides a distinct advantage to employers.
     No right to trial before a jury of one's peers, which is 
protected by legislation such as the Civil Rights Act of 1991 and the 
Age Discrimination in Employment Act.
     Stringent filing requirements, giving parties less time to 
prepare and reducing the statutory limitations period that would 
otherwise be available for filing a lawsuit.
     Limited right to appeal arbitration decisions. Courts are 
only permitted to overturn such decisions under extreme circumstances. 
Significantly, the existence of clear errors of law or fact in an 
arbitrator's decision does not provide grounds for appeal.
     Limited range of remedies available. Arbitrators cannot 
order injunctive relief, and very rarely award compensatory or punitive 
damages. Even when awarding damages, arbitrators often award only back 
pay.
     Uncertain ability to bring class actions suits, even when 
this particular type of action would be most efficient in addressing 
the discrimination.
    Arbitration is also often private and confidential, so employers 
are spared from the public awareness that otherwise would provide a 
strong incentive to proactively address discrimination and harassment.
    Pre-dispute mandatory arbitration is simply not an effective way to 
enforce our civil rights laws, hold violators accountable, and prevent 
discrimination from occurring again in the future. To the contrary, 
allowing arbitrators to bypass important civil rights legislation in 
making their decisions weakens our system's ability to protect 
employees from discrimination in the workplace. It is one thing to 
permit employees to willingly and knowingly agree to resolve an 
existing dispute through arbitration. It is quite another to allow 
vulnerable employees to be forced by their circumstances to rely on 
mandatory arbitration to enforce their civil rights and maintain our 
nation's commitment to equality.
Why the Arbitration Provision in H.R. 5129 is Necessary
    Primarily because of a competing public policy favoring arbitration 
of disputes evident in the Federal Arbitration Act, the Supreme Court 
in its recent analysis of pre-dispute mandatory arbitration,\7\ has 
been unwilling to conclude that mandatory arbitration frustrates the 
purpose of civil rights laws ensuring equal employment opportunity, 
absent an explicit statement from Congress on the issue. Further, as 
previously mentioned, the Court has repeatedly noted that binding 
arbitration should not impact the substantive right, just the forum.
    These rulings have exacerbated rather than resolved the problems 
raised by mandatory arbitration agreements. Many lower courts give 
deference to arbitration agreements in virtually every type of 
employment case and ignore the fact that mandatory arbitration has a 
substantial impact beyond merely changing the forum.
    Indeed, some courts have enforced mandatory arbitration agreements 
even when employees have expressly refused to sign them. Ms. Fonza 
Luke, of Alabama, worked loyally as a nurse for a hospital for almost 
30 years. Despite her decades of committed service, she was asked to 
sign a document agreeing to use of mandatory arbitration program for 
any dispute arising in her workplace. Although she explicitly refused 
to sign the agreement, a court forced her arbitrate her discrimination 
claims.\8\
    Judicial decisions upholding mandatory arbitration in employment 
cases highlight the importance of Congress resolving the issue through 
legislation like Section 421-424 of H.R. 5129. In light of Congress's 
approval of arbitration generally, as reflected in the Federal 
Arbitration Act, courts are understandably uncomfortable concluding 
that arbitration of employment discrimination claims is unlawful 
without more evidence of congressional intent.\9\ Speculation regarding 
Congress's intent regarding mandatory arbitration of employment claims 
has created substantial confusion in the lower courts. Some courts have 
enforced mandatory arbitration clauses and upheld them as binding.\10\ 
Others have struck them down, concluding that such clauses 
significantly alter employees' substantive rights.\11\
Conclusion: Congress Must Take Positive Action
    Through its decisions, the Supreme Court has virtually invited 
Congress to specifically express its intent with regard to the 
permissibility of pre-dispute mandatory arbitration of employment 
claims.\12\ Section 421-424 of H.R. 5129 answers the Court's request by 
reinforcing the protections Congress intended our nation's workers to 
enjoy.
    The Leadership Conference urges Congress support the H.R. 5129's 
arbitration provision. With nearly a quarter of America's non-union 
workforce currently being subjected to the separate and extremely 
unequal system of mandatory arbitration, Congress should take positive 
steps to ensure that our civil rights and employment laws protect all 
American workers.
    Again, thank you Chairman Andrews, Ranking Member Kline, and 
members of the Subcommittee for the opportunity to speak with you 
today.
                                endnotes
    \1\ A listing of the organizations that comprise the Leadership 
Conference is attached as Exhibit 1.
    \2\ A copy of my resume is attached as Exhibit 2.
    \3\ See the attached timeline documenting the increase in the use 
of mandatory arbitration prepared by the National Employment Lawyers 
Association, attached as Exhibit 3.
    \4\ See Alexander Colvin Empirical Research on Employment 
Arbitration: Clarity Amidst the Sound and Fury? 11 EMP. RTS. & EMP. 
POL'Y J. 405, 411 (2007) Describing it as a conservative estimate, 
Professor Colvin extrapolates the 25% figure from his 2003 finding that 
23% of the non-union telecommunications workforce was covered by 
mandatory arbitration programs.
    \5\ This assumes that the applicant is actually aware of the pre-
dispute mandatory arbitration requirement. Even if some employees would 
object to unfair and burdensome pre-dispute mandatory arbitration 
clauses, such clauses are often deeply buried in the small print of 
lengthy employment contracts, and can be so unclear that most employees 
do not truly understand the consequences of signing the agreement.
    \6\ See Hearing on H.R.. 3010, The Arbitration Fairness Act of 
2007Before the Subcomm. on Commercial and Administrative Law of the H. 
Comm. on the Judiciary, 110th Cong. (2007) (Testimony of Ms. Cathy 
Ventrell-Monsees, Esq.).
    \7\ See EEOC v. Waffle House, Inc., 534 U.S. 279 (2002) (concluding 
that a mandatory arbitration agreement between an employee and an 
employer does not bar the EEOC from pursuing victim-specific relief in 
an enforcement action under the Americans with Disabilities Act); 
Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001) (holding that 
the Federal Arbitration Act exempts only transportation workers, not 
all employment contracts, and therefore the binding arbitration 
provision contained an a retail employee's job application was 
enforceable); Gilmer v. Interstate/Johnson Lane Corp., 500 U.S. 20 
(1991) (enforcing a pre-dispute, binding, mandatory arbitration 
agreement in an age discrimination case, even though the Age 
Discrimination in Employment Act explicitly codifies the right to a 
trial before a judge and jury).
    \8\ See S. 1782, The Arbitration Fairness Act of 2007: Hearing on 
S. 1742 Before the S. Comm. on the Judiciary, 110th Cong. (2007) 
(Testimony of Ms. Fonza Luke).
    \9\ See Circuit City, 532 U.S. at 119 (Concluding that the FAA's 
text cannot be interpreted to exempt all employment contracts and Court 
cannot simply create such an exemption); Barker v. Halliburton Co., 
2008 U.S. Dist. LEXIS 6741 at *21 (S.D. Tex. 2008) (``Therefore, absent 
some showing that Congress expressly exempted one of Barker's types of 
claims from arbitration, the presumption under the Federal Arbitration 
Act is that arbitration must be compelled.'').
    \10\ See, e.g., EEOC v. Woodmen of the World Life Ins. Society, 479 
F.3d 561 (8th Cir. 2007); Garrett v. Circuit City Stores, Inc., 449 
F.3d 672 (5th Cir. 2006); Caley v. Gulf Stream Aerospace Corp., 428 
F.3d 1359 (11th Cir. 2005). In fact, the only circuit that has 
addressed the issue of mandatory arbitration of USERRA claims has 
enforced the arbitration agreement despite explicit language in USERRA 
indicating that it supersedes any contract or agreement that reduces, 
limits, or eliminates any rights under the Act or creates additional 
prerequisites to exercising USERRA rights. See Garrett, 449 F.3d at 
677-678; 38 U.S.C. Sec.  4302(b).
    \11\ See, e.g., Davis v. O'Melveny & Myers, 485 F.3d 1066 (9th Cir. 
2007) (holding that a mandatory arbitration agreement was 
unconscionable under California law in part because it contained 
provisions that required employees to ``waive potential recovery for 
substantive statutory rights in an arbitral forum''); Kristian v. 
Comcast Corp., 446 F.3d 25 (1st Cir. 2006) (striking down several 
provisions of a pre-dispute mandatory arbitration clause as invalid 
because threatened to alter substantive rights); McMullen v. Meijer 
Inc., 355 F.3d 485 (6th Cir. 2004) (striking down a provision in a 
mandatory arbitration agreement which granted employer unilateral 
control over the pool of potential arbitrators, because such a 
provision inherently lacked neutrality and prevented the employee from 
effectively vindicating her statutory rights).
    \12\ See Circuit City Stores, Inc. v. Saint Clair Adams, 532 U.S. 
105, 119 (2001) (explaining that the Court has no basis to adopt ``by 
judicial decision rather than amendatory legislation, an expansive 
construction of the FAA's exclusion provision'' that would exempt all 
employment contracts) (internal citations omitted) (emphasis added); 
Gilmer, 500 U.S. at 26 (``Although all statutory claims may not be 
appropriate for arbitration, having made the bargain to arbitrate, the 
party should be held to it unless Congress itself has evinced an 
intention to preclude a waiver of judicial remedies for the statutory 
rights at issue.'').
                                 ______
                                 
    Chairman Andrews. Mr. Foreman, thank you for your 
testimony.
    We will now move to the witnesses who will discuss the 
issue of the employment rights of first responders who serve 
our country in a voluntary, but professional basis.
    Chief Alchevsky, welcome to the committee.

       STATEMENT OF JOHN ALCHEVSKY, VOLUNTEER FIREFIGHTER

    Mr. Alchevsky. Thank you, Chairman Andrews, Ranking Member 
Kline, distinguished members of the subcommittee.
    I would like to thank you for giving me the opportunity to 
be here today to speak with you about the need for employment 
protection for volunteer firefighters and EMS personnel.
    My name is John Alchevsky. I am the chief of Cassville 
Volunteer Fire Company in Jackson Township, New Jersey, where I 
have served for almost 30 years.
    In 2005, immediately following Hurricane Katrina, my fire 
company was contacted by FEMA and asked to contribute two teams 
of four to be deployed to Louisiana to perform community 
relations duties.
    I am employed as a captain with the New Jersey Department 
of Corrections. When I approached my employer about potentially 
deploying, I was informed that I did not have enough personal 
leave time accrued to go.
    My job has prevented me from responding to major 
emergencies within the State of New Jersey on a number of 
occasions as well. For instance, last summer, my company was 
dispatched to Stafford Township, in Southern Ocean County, 
where a wild land fire was burning for structure protection 
duty.
    While I was eventually able to deploy, along with the rest 
of my company, having to go through the normal process of 
requesting and receiving time off from work delayed my response 
by approximately 24 hours. These are just two examples of 
instances in which my job has prevented me from responding to 
an emergency.
    Over the course of 30 years of volunteer service, I have 
personally experienced and witnessed numerous situations in 
which volunteer firefighters have either been prevented from or 
delayed in responding to an emergency or have had to leave the 
scene of an emergency prematurely for fear of disciplinary 
action by their employer.
    In New Jersey, municipal employees that are members of a 
volunteer fire company or first aid squad are allowed time off 
with pay to respond to local emergencies. Additionally, civil 
servants employed by the state are authorized to respond to 
state or federally declared disasters to serve as certified Red 
Cross volunteers.
    This protection does not extend to volunteer firefighters, 
EMS, or emergency management personnel. Unfortunately, there is 
no job protection of any kind for volunteers who are employed 
in the private sector.
    From my perspective, the issue of job protection is a 
fundamental one for the long-term health of the volunteer fire 
service. Recruitment and retention of volunteer personal is 
becoming increasingly difficult. Many people do not seem to 
have enough free time to volunteer anymore, particularly as 
training requirements increase.
    In the past when people lived and worked in the same town, 
volunteering was easier and employers were also community 
members. In many parts of New Jersey, though, people are moving 
from Philadelphia and New York into formerly rural areas and 
commuting back into the city for work. As the distance between 
home and employment increases and grows, people are finding it 
more difficult to balance their responsibilities as employees 
and volunteer emergency responders.
    The passage of legislation protecting the employment status 
of volunteer emergency responders would help to counteract this 
trend.
    I wish to thank you, again, for the opportunity to testify 
before you here today. I look forward to answering any 
questions that you might have.
    [The statement of Mr. Alchevsky follows:]

   Prepared Statement of John I. Alchevsky, National Volunteer Fire 
                                Council

    Chairman Andrews, Ranking Member Kline and distinguished members of 
the subcommittee, I'd like to thank you for giving me the opportunity 
to be here today to speak with you about the need for employment 
protection for volunteer firefighters and EMS personnel. My name is 
John Alchevsky and I am the Chief of Cassville Volunteer Fire Company 
#1 in Jackson Township, New Jersey, where I have served for almost 30 
years.
    In 2005, immediately following Hurricane Katrina, my Fire Company 
was contacted by FEMA and asked to contribute two teams of four to be 
deployed to Louisiana to perform community relations duties. I am 
employed as a Captain with the New Jersey Department of Corrections. 
When I approached my employer about potentially deploying, I was 
informed that I did not have enough personal leave time accrued to go.
    My job has prevented me from responding to major emergencies within 
the state of New Jersey on a number of occasions. For instance, last 
summer my company was dispatched to Stafford Township in Southern Ocean 
County, where a wildland fire was burning, for structure protection 
duty. While I was eventually able to deploy along with the rest of my 
company, having to go through the formal process of requesting and 
receiving time off from work delayed my response by 24 hours.
    These are just two examples of instances in which my job has 
prevented me from responding to an emergency. Over the course of 30 
years of volunteer service, I have personally experienced and witnessed 
situations in which volunteer firefighters have either been prevented 
from or delayed in responding to an emergency or had to leave the scene 
of an emergency prematurely for fear of disciplinary action by their 
employer.
    In New Jersey, municipal employees that are members of a volunteer 
fire company or first aid squad are allowed time off with pay to 
respond to local emergencies. Additionally, civil servants employed by 
the state are authorized to respond to state- or federally-declared 
disasters to serve as certified Red Cross volunteers. This protection 
does not extend to volunteer firefighters, EMS or emergency management 
personnel. Unfortunately, there is no job protection of any kind for 
volunteers who are employed in the private sector.
    From my perspective, the issue of job protection is a fundamental 
one for the long-term health of the volunteer fire service. Recruitment 
and retention of volunteer personnel is becoming increasingly 
difficult. Many people don't seem to have enough free time to volunteer 
anymore, particularly as training requirements increase. In the past, 
when people lived and worked in the same town, volunteering was easier 
and employers were also community members. In many parts of New Jersey, 
people are moving from Philadelphia and New York into formerly rural 
areas and commuting back into the city for work. As the distance 
between home and employment grows, people are finding it more difficult 
to balance their responsibilities as employees and volunteer emergency 
responders. Passage of legislation protecting the employment status of 
volunteer emergency responders would help to counteract this trend.
    Thank you again for the opportunity to testify here today. I look 
forward to answering any questions that you might have.
                                 ______
                                 
    Chairman Andrews. Chief, thank you. We are very glad that 
you are with us. We appreciate it.
    Mr. Robinson, welcome to the subcommittee.

   STATEMENT OF ALFRED ROBINSON, JR., SHAREHOLDER, OGLETREE 
                            DEAKINS

    Mr. Robinson. Thank you, Mr. Chairman.
    Chairman Andrews, Ranking Member Kline, and distinguished 
members of the subcommittee, thank you for this opportunity.
    Again, my name is Al Robinson. I appear today on behalf of 
the Society for Human Resource Management, the world's largest 
professional association devoted to human resource management.
    Mr. Chairman, over the last several years, the nation's 
volunteer firefighters and emergency medical service personnel 
have been asked to respond to everything from natural 
disasters, such as the recent tornadoes in the Southeast and 
the fires in California last summer, to the terrorist attacks 
of September 11, 2001.
    The Society of Human Resource Management joins all 
Americans in expressing our indebtedness to the service of 
volunteer firefighters and medical responders.
    U.S. employers provide a host of leave benefits, both 
voluntary and mandatory, to help employees achieve an effective 
work-life balance and meet their own professional and personal 
needs. I want to highlight for the subcommittee a few of those 
federal laws.
    The most prominent federal law is the Family and Medical 
Leave Act. Another statute, the Americans with Disabilities 
Act, also provides leave benefits. Through providing reasonable 
accommodations to employees, employers frequently give time off 
from work to these employees. Also, EEOC guidance says that 
employers can be required to give an indefinite leave of 
absence to employees in certain circumstances.
    The newest federal leave mandate is a job-protected leave 
benefit for military family members. It requires employers to 
provide both active duty leave and 12 weeks of FMLA leave for 
an employee whose spouse, son, daughter, or parent is called to 
active duty and caregiver leave for a total of 26 weeks during 
a 12-month period to give care for recovering soldiers.
    I underscore these laws because employers face potential 
litigation and damages when they make a wrong decision.
    As for the proposed legislation, it is a laudable goal to 
give a leave entitlement for volunteer firefighters and 
emergency medical personnel. However, this proposal has many 
provisions that could undermine that goal, and we believe the 
subcommittee should clarify and address them.
    Despite the best intentions of the drafters of this 
legislation, there are significant omissions in this 
legislative proposal.
    First, the proposal charges no governmental department or 
entity with the responsibility to define by regulation any 
provision of the proposal. Regulatory guidance would assist 
employees and employers to know and understand their rights and 
obligations.
    The second omission is the proposal provides no 
administrative enforcement mechanisms. Instead, the only way to 
resolve ambiguities or unaddressed questions under this leave 
program is through unnecessary, costly ligation, which we 
submit will not nurture the spirit of volunteerism.
    In addition, there is a need for clarification. First, the 
proposal makes no differentiation in the characteristics of the 
employer to which it applies. The proposal would apparently 
apply to any and all employers, large or small.
    Second, it is unclear if the legislation would cover full-
or part-time employees.
    Third, the proposal fails to take into consideration its 
impact upon any employer if an employee is a key employee.
    Fourth, there is no provision for undue hardship limitation 
should a single employer face the burden of having multiple 
employees who are absent due to its protections.
    Fifth, the proposal does not address whether reasonable 
notice means that an employee must comply with the employer's 
notification procedures. As you are aware, this is an ongoing 
issue for employers and employees under the FMLA.
    Sixth, the inclusion of state disasters and emergencies 
under the proposal compounds an employee's and employer's 
ability to determine what disasters or emergencies are covered.
    Seventh, I would urge the subcommittee to address language 
to allow an employer to reduce an employee's pay when they are 
absent for working for volunteer services. At a minimum, 
Congress should clarify that an employer could dock a Section 
13(a)1 exempt employee under the Fair Labor Standards Act for a 
partial day absence and that a full day absence for 
volunteering would constitute a personal day.
    Eighth, the verification process needs clarification. While 
it permits an employer to require an employee to provide it, no 
timeframes as to compliance or consequences for failure are 
provided.
    Ninth, the proposal provides 14 days of leave, but is 
unclear whether tardiness or absence would be protected after 
being deployed for a week.
    There are other ambiguous provisions and other questions.
    I would be glad to any questions for you, Mr. Chairman and 
the subcommittee, and we appreciate this opportunity to share 
our concerns.
    [The statement of Mr. Robinson follows:]
    
    
    
                                ------                                

    Chairman Andrews. Mr. Robinson, thank you for your very 
constructive testimony. We appreciate it very much.
    Chief, welcome to the subcommittee. We look forward to your 
testimony.

 STATEMENT OF PHILIP STITTLEBURG, CHAIRMAN, NATIONAL VOLUNTEER 
                          FIRE COUNCIL

    Mr. Stittleburg. Thank you, Mr. Chairman.
    First of all, let me begin by thanking you personally for 
the longtime support that you have provided to the fire and 
emergency services of our country. Your support has long been 
noted, it is much appreciated, and I want to take this 
opportunity to thank you personally for it.
    Second, I want to thank you for allowing me to testify 
today. My name is Chief Phil Stittleburg. I am chief of the 
LaFarge Fire Department.
    I am also chairman of the National Volunteer Fire Council. 
The NVFC is nonprofit organization. We represent more than 1 
million volunteer firefighters and emergency medical personnel 
throughout the country.
    We are found most predominantly in smaller communities. 
Volunteer fire and EMS personnel serve more than 20,000 
communities throughout the United States, and we save our 
fellow taxpayers about $37 billion a year by virtue of our 
donated services.
    Without the services that these volunteers provide, many 
communities simply would not have these services because they 
are not able to afford to purchase them, and this is especially 
true in rural areas.
    First of all, I would like to emphasize that volunteer 
firefighters and EMS personnel are true professionals. We are 
trained the same, we respond the same, we give the same 
service, we accept the same risks, and we do the same job as 
our paid counterparts. The only difference is that we do it for 
little or no money, and what that means then is consequently we 
must have a day job to provide our livelihood. In my instance, 
I am an assistant district attorney employed by the State of 
Wisconsin.
    The vast majority of incidents that occur in our country 
every year are handled locally, of course, and many of those 
are handled by the volunteers that I have just described. In 
those rare instances where there is a larger incident, an 
incident too big for the local resources to deal with, why, 
there is a process, of course, to call in state resources and, 
of course, there is a process for states to call in other 
states through the Emergency Management Assistance Compact, 
EMAC, as many of you are aware.
    When we talk about large incidents, I think the images that 
spring to mind primarily are, say, the terrorist attacks of 9/
11 or Hurricane Katrina, but in actual point of fact, there are 
on average in a given year probably 50 or more incidents that 
are declared as federal emergencies, and when the nonlocal 
firefighters and EMS personnel get deployed to these, they are 
expected to serve for an extended period of time. With a 
federally declared emergency, they would be expected to respond 
for up to 14 days.
    For many volunteers, absence from their job is a major 
impediment to being available to respond. Currently, volunteer 
firefighters and EMS personnel do not have federal protection 
for responding and, consequently, they are exposed to 
suspensions, demotions, firing, other sorts of workplace 
retaliation for missing work because of responding to 
incidents.
    Now some states, of course, have responded to this concern 
by passing legislation on a state-by-state basis. Most have 
not.
    But what is, I think, even more significant in this area is 
the chilling effect that the potential for job retaliation has. 
In other words, volunteers stand the possibility of being told 
that they are not going to be given the time off or that if 
they take the time off that they will be required to take their 
own personal vacation time to do it and, consequently, they 
simply are not going to respond. So we have very much of a 
chilling effect on the ability to provide the response that is 
needed.
    My view is that volunteers deserve protection. We call upon 
them to donate their time. We call upon them to donate their 
talent. We should not expect them to also have to put at risk 
their livelihood. We ask that the federal government provide 
for up to 14 days of protection per year.
    This is not intended primarily to protect volunteers. What 
it is intended to do is to enable volunteers to do the job that 
they are trained to do, that is to help and protect the public. 
Doing this would expand by thousands the number of responders 
that would be available throughout the country that pre-
emergency planners can count on and they know are there and 
available.
    Now I understand concerns briefly raised, although I 
thought that one of the remarks was particularly interesting, 
that employers are trying to enable employees to reach a work-
life balance. I would suggest to you here this is a work-work 
balance. The volunteers work in both careers.
    Thank you very much, Mr. Chairman.
    [The statement of Mr. Stittleburg follows:]

 Prepared Statement of Philip C. Stittleburg, National Volunteer Fire 
                                Council

    Chairman Andrews, Ranking Member Kline and distinguished members of 
the subcommittee, I'd like to thank you for giving me the opportunity 
to be here today to speak with you about the need for employment 
protection for volunteer firefighters and EMS personnel. I am Chief 
Philip C. Stittleburg of the La Farge Fire Department in Wisconsin and 
Chairman of the National Volunteer Fire Council (NVFC). The NVFC is a 
nonprofit organization representing the interests of the more than 1 
million volunteer firefighters and EMS personnel in the United States.
    Volunteer firefighters and EMS personnel serve in more than 20,000 
communities across this country. Their services save local taxpayers 
more than $37.2 billion each year. Without volunteer firefighters and 
EMS personnel, many communities, particularly in rural areas, simply 
could not afford to provide effective emergency services to their 
citizens.
    Volunteer firefighters and EMS personnel receive the same training 
as their career counterparts and are professionals in all aspects of 
the word other than the fact that they receive little or no pay for 
their services. Volunteer emergency responders work full time jobs just 
like everyone else in order to pay the bills. For instance, I work as 
an assistant district attorney representing the State of Wisconsin.
    The vast majority of emergency response in this country is handled 
locally. Many states, understanding the value to public safety provided 
by volunteer emergency responders, have passed laws allowing volunteers 
to be late or miss work because they are responding to an emergency. 
Some states even authorize paid leave for government employees who miss 
work to respond to an emergency.
    When a major incident occurs that overwhelms the ability of local 
agencies to respond, state and, in the most extreme cases, federal 
assistance can be brought to bear. This process is initiated by a 
request for assistance by a local agency to the state, and states can 
request assistance from other states through the Emergency Management 
Assistance Compact (EMAC). Hurricane Katrina and the terrorist attacks 
on 9/11 are extreme examples in which significant non-local assistance 
was required for a sustained period of time, but on average more than 
50 incidents occur each year that are severe enough to be declared 
federal emergencies.
    When non-local firefighters and EMS personnel are dispatched to a 
major disaster they are expected to be able to serve for an extended 
period of time--in the case of federal disasters, up to 14 days. For 
many volunteer emergency responders, absence from their employment is a 
major impediment to responding to a disaster for this amount of time on 
relatively short notice.
    Currently, volunteer firefighters and EMS personnel are not 
protected against termination or demotion should they miss work when 
called upon to respond to a major emergency or disaster. Volunteer 
emergency responders have been known to return home after responding to 
a major disaster to find that they no longer have jobs, even in cases 
where they notified their employer that they would be absent. More 
frequently, volunteers will check with their employers and either be 
told that they can't go or that they have to take vacation time in 
order to respond. My fellow volunteer firefighter John Alchevsky is 
here today to tell you about the difficulties that he has had getting 
time off from work to respond to major disasters.
    Volunteer emergency responders who travel to a different part of 
the country to dedicate their time and energy assisting fellow citizens 
in desperate need of help don't deserve to be rewarded for their 
efforts with a pink slip. The federal government should provide up to 
14 days of job protection per year for volunteer emergency responders 
who respond in an official capacity to a major disaster. This would not 
only benefit first responders personally, but with employment 
protection for volunteers in place, thousands of well-trained 
firefighters and EMS personnel who volunteer for their local community 
would be added to the pool of personnel that pre-emergency planners 
will be able to count on as available to respond in case of a major 
disaster.
    In order to prevent abuse of this system, volunteers should be 
required to inform their employers that they will be absent and provide 
reasonable notifications over the course of their absence. Employers 
should be able to obtain written verification from the agency 
supervising the response to the major disaster that the employee 
responded in an official capacity and the dates during which that 
response took place. Additionally, employers should not be required to 
compensate employees for the time that they are absent from work.
    Thank you again for the opportunity to testify here today. I look 
forward to answering any questions that you might have.
                                 ______
                                 
    Chairman Andrews. Chief, thank you very much for your 
testimony. We appreciate it.
    We are now going to move to the section of the panel that 
will deal with the issue of the employment rights of our 
returning service members who are deployed, whether it is 
overseas or within our country, and, Mr. Serricchio--did I get 
it right this time?
    Sergeant Serricchio. Yes, sir.
    Chairman Andrews. Welcome to the subcommittee. We look 
forward to your testimony.

   STATEMENT OF SGT MICHAEL SERRICCHIO, AIR FORCE RESERVES, 
                            RETIRED

    Sergeant Serricchio. Thank you.
    At the time of the 9/11 terrorist attacks, I was a member 
of the United States Air Force Reserves. On September 30, 2001, 
I was called to active duty to serve in the war on terror.
    At that time, I was employed by Prudential Securities as a 
financial adviser. I managed, with my partner, approximately 
250 accounts with over $11 million in assets under management. 
I was earning in excess of $75,000 per year.
    When I returned from active duty 2 years later, I was 
offered to return as a financial adviser, yet I was only 
offered a handful of my former accounts to manage. I was told 
that I could have an advance of $2,000 per month which I would 
be required to repay from any commissions earned through cold 
calling new accounts or from my personal savings.
    Neither my prior earnings, my prior accounts, nor my prior 
assets under management were taken into consideration in the 
reinstatement offer. In short, I was asked to start my career 
over from scratch, as there was no way I could support either 
myself or my wife and 2-year-old daughter under the terms 
provided. I was forced to seek employment elsewhere.
    I am here today to describe what happened to me in an 
effort to apprise this committee of the tactics employers are 
taking to avoid their responsibilities under USERRA, the 
significant impact such tactics have on the lives and families 
of the service men and women affected, the morale of the entire 
armed forces, and on the continued vitality of our volunteer 
armed services.
    Briefly stated, here is what happened. At 28, I was 
accepted into the Morgan Stanley Dean Witter Financial Advisor 
Training Program. Over the course of the next 18 months, I 
successfully built a book of business that produced in excess 
of $300,000 in annual gross commissions.
    My success as a financial adviser resulted in my being 
recruited by Prudential. As an incentive to join Prudential, I 
was paid an upfront bonus of over $230,000. I joined Prudential 
in October of 2000 and remained there until I was activated on 
September 30 of 2001.
    Although I was scheduled for only a 1-year activation, I 
remained on active duty for more than 2 years' service in both 
Saudi Arabia and in the United States.
    I had joined the United States Air Force Reserves when I 
was 20 years old. For my service in the Reserves, I received, 
among other recognitions of distinction, a Commendation Medal, 
a Meritorious Service Medal, an Air Force Longevity Medal, the 
Airman of the Year, and the National Defense Service Ribbon.
    After the 2 years of active duty fighting in the war on 
terror, I was honorably discharged. I wrote to Wachovia 
Securities, which 5 months prior had taken over Prudential's 
retail brokerage department, informing them that I was seeking 
reinstatement. No one at Wachovia contacted me for 7 weeks, and 
I was not afforded the opportunity to return to work until 4 
months after I had requested reinstatement.
    When I was finally allowed to return to work, Wachovia told 
me that only a handful of my former accounts would be returned 
to me, accounts that would have produced negligible 
commissions. Wachovia offered to provide me an advance of 
$2,000 per month that I would repay through commissions earned 
on cold calling new accounts or my depleting my personal 
savings.
    Under the terms provided, the likelihood of my being able 
to sustain myself or my family was minimal. Worse yet, there 
was a high likelihood that I would owe Wachovia money at the 
end of each month.
    Wachovia did not offer to pay me the salary I had been 
earning prior to my activation while I would have attempted to 
rebuild my business, nor did Wachovia offer to give me 
preferential treatment when new, unsolicited accounts came into 
the office.
    In essence, even though I had previously been managing 250 
accounts, $15 million in assets, and earning in excess of 
$75,000, Wachovia wanted me to start my career over by making 
cold calls.
    Wachovia knew that I had a wife and family to support. 
Wachovia knew that I could neither support myself nor my family 
under the terms provided. I rejected Wachovia's offer of 
reinstatement and brought suit under USERRA.
    Wachovia has defended its offer under reinstatement 
claiming that under USERRA it was not required to reinstate me 
to a position that reflected my prior earnings, accounts, or 
assets under management.
    In addition, Wachovia has responded by instituting a 
counterclaim against me, seeking to force me to repay the 
balance of the original $230,000 signing bonus Prudential had 
given me.
    As a returning veteran, it worries me that if a prominent 
company like Wachovia, which publicly boasts about its 
commitment to veteran employees, is interpreting USERRA to 
exclude consideration of prior earnings, duties, and 
responsibilities, I can only imagine how other less prominent 
companies are responding to returning veterans.
    Job security is both the heart and soul of USERRA. As this 
committee is undoubtedly aware, USERRA was intended to 
encourage men and women to serve our country by assuring them 
that upon their return, their jobs would be promptly waiting 
for them.
    Job security for those who are serving and for those who 
will be called to serve in the future is essential to not only 
maintain the morale of our troops, but to sustain the voluntary 
Guard and Reserve armed force.
    If our country does not insist on job security to those who 
serve under the Guard and Reserve, then the continued vitality 
of our volunteer armed services is in grave danger.
    Again, I would like to thank you for the opportunity to 
testify.
    [The statement of Sergeant Serricchio follows:]

  Prepared Statement of Michael Serricchio, Former Air Force Reservist

    At the time of the 9/11 terrorist attacks, I was a member of the 
United States Air Force Reserves. On September 30, 2001, I was called 
to active duty to serve in the War on Terror. At that time, I was 
employed by Prudential Securities as a financial advisor. I managed, 
with my partner, approximately 250 accounts, with over $11 million in 
assets under management. I was earning in excess of $75,000 per year.
    When I returned from active duty, two years later, I was offered to 
return as a financial advisor, yet I was only offered a handful of my 
former accounts to manage. I was told that I could have an advance of 
$2000 per month, that I would be required to repay from any commissions 
earned through ``cold calling'' new accounts or from my savings. 
Neither my prior earnings, my prior accounts, or my prior assets under 
management were taken into consideration in the reinstatement offer. In 
short, I was asked to start my career over from scratch. As there was 
no way I could support either myself, or my wife and two-year old 
daughter under the terms provided, I was forced to seek employment 
elsewhere.
    I am here today to describe what happened to me in an effort to 
apprise this Committee of the tactics employers are taking to avoid 
their responsibilities under USERRA and the significant impact such 
tactics have on the lives and families of the service men and women 
affected, on the morale of the entire armed forces, and on the 
continued vitality of our volunteer armed services.
    Briefly stated, here is what happened.
    At 28, I was accepted into Morgan Stanley Dean Witter's Financial 
Advisor Training Program. Over the course of the next 18 months, I 
successfully built a book of business that produced in excess of 
$300,000 in annual gross commissions.
    My success as a financial advisor resulted in my being recruited by 
Prudential. As an incentive to join Prudential, I was paid an upfront-
bonus of over $230,000. I joined Prudential in October 2000 and 
remained there until I was activated on September 30, 2001. Although I 
was scheduled for only a one year term, I remained on active duty for 
more than two years, serving in both Saudi Arabia and in the United 
States.
    I had joined the United States Air Force Reserves when I was 20 
years old. For my service in the Reserves, I received, among other 
recognitions of distinction, a commendation medal, a meritorious 
service medal, an air force service longevity medal, the airman of the 
year, and a national defense service ribbon.
    After two years of active duty fighting in the War on Terror, I was 
honorably discharged. I wrote to Wachovia Securities, which five months 
prior had taken over Prudential's retail brokerage department, 
informing them that I was seeking reinstatement. No one at Wachovia 
contacted me for seven weeks and I was not afforded the opportunity to 
return to work until four months after I had requested reinstatement.
    When I was finally allowed to return to work, Wachovia told me that 
only a handful of my former accounts would be returned to me, accounts 
that would have produced negligible commissions. Wachovia offered to 
provide me an advance of $2,000 per month that I would repay through 
commissions earned on cold calling new accounts or by depleting my 
savings. Under the terms provided, the likelihood of my being able to 
sustain myself, or my family, was minimal. Worse yet, there was a high 
likelihood that I would owe Wachovia money at the end of each month.
    Wachovia did not offer to pay me the salary I had been earning 
prior to my activation while I attempted to rebuild my business. 
Wachovia did not offer to give me preferential treatment when new 
unsolicited accounts came into the office. In essence, even though I 
had previously been managing 250 accounts, $11 million in assets, and 
earning in excess of $75,000, Wachovia wanted me to start my career 
over by making cold calls. Wachovia knew that I had a wife and family 
to support. Wachovia knew that I could neither support myself, nor my 
family, under the terms provided.
    I rejected Wachovia's offer of reinstatement and brought suit under 
USERRA. Wachovia has defended its offer of reinstatement, claiming that 
under USERRA it was not required to reinstate me to a position that 
reflected my prior earnings, accounts or assets under management. In 
addition, Wachovia has responded by instituting a counter claim against 
me, seeking to force me to repay the balance of the original signing 
bonus Prudential had given me.
    As a returning veteran, it scares me that if a prominent company 
like Wachovia--which publicly boasts about its commitment to veteran 
employees--is interpreting USERRA to exclude consideration of prior 
earnings, duties and responsibilities, I can only imagine how other 
less prominent companies are responding to returning veterans.
    Job security is both the heart and soul of USERRA. As this 
Committee is undoubtedly aware, USERRA was intended to encourage men 
and women to serve our country by assuring them, that upon their 
return, their jobs would be promptly waiting for them. Job security for 
those who are serving, and for those who will be called to serve in the 
future, is essential to not only maintain the moral of our troops, but 
to sustain voluntary guard and reserve armed forces. If our country 
does not insist on job security to those who serve under the guard and 
reserve, the continued vitality of our volunteer armed services is in 
grave danger.
                                 ______
                                 
    Chairman Andrews. We thank you very, very much for coming 
with us today. Thank you very, very much.
    Mr. Wood, welcome to the subcommittee.

   STATEMENT OF GEORGE WOOD, EMPLOYMENT SPECIALIST ATTORNEY, 
                       LITTLER MENDELSON

    Mr. Wood. Thank you, Mr. Chairman, Ranking Member Kline, 
and distinguished members of the committee.
    I am honored to be here today to present testimony 
regarding the proposed amendment the committee is considering 
under the Uniformed Services Employment and Reemployment Rights 
Act, also known as USERRA.
    I have practiced law for 22 years. I currently work for the 
firm of Littler Mendelson which has 650 attorneys helping 
employers each day comply with the various employment laws that 
have been implemented at both the state and federal levels. For 
approximately the last 10 years, I have advised employers 
regarding their obligations under USERRA.
    It is my opinion, based upon the clients I have worked with 
over the years, that employers take very seriously their 
obligations under USERRA. They also take very seriously the 
commitment their employees make to this nation while they are 
serving in the military.
    Rightfully so, USERRA provides covered employees with broad 
protection, and it is in light of these existing protections 
that I believe that three of the four proposed amendments that 
the committee is considering are unnecessary based upon the 
current standards for USERRA.
    As Representative Kline indicated, these are rifle shots 
that are based at certain instances that have occurred once or 
twice over the past 13 years.
    The proposed amendments are, number one, the amendment to 
USERRA Section 4303(2) regarding what is included within the 
phrase ``benefit of employment'' to include wages. Secondly, 
the amendment to USERRA Section 4311(a) to include potential 
applicants for military service, and, third, the amendment to 
Section 4311 to permit a claim for a disparate impact theory to 
be used for liability.
    I take no position here today with respect to the issue of 
requiring states to receive federal funds to waive their 11th 
Amendment rights.
    I would like to start off talking briefly about the issues 
of including wages in Section 4303(2) as a benefit of 
employment. Currently, that section excludes specifically wages 
or salary for work performed from the definition of ``benefits 
of employment.''
    When Congress enacted USERRA in 1994, there was obviously a 
purpose behind its choice not to include wages or salary within 
the definition of ``benefits of employment,'' and I believe the 
Congress chose to exclude wages and salary from that definition 
due to the impact that that inclusion would have on the 
employer's legitimate ability to pay employees differently 
based on valid factors, such as educational background and work 
experience.
    In addition to protecting benefits of employment, Section 
4311(a) currently covers applicants and employees from 
discrimination from such things as initial employment, 
reemployment, retention in employment, and promotion. These 
factors are, in essence, all the aspects of the employment 
relationship, and they are all covered.
    Including wages within the standard for benefits of 
employment would unduly impact an employer's decision regarding 
what wages to pay different employers. Rather than making 
decisions based on legitimate and appropriate criteria, 
employers would have the deck stacked against them from the 
start.
    Any minimal differentiation in wages between a covered 
employee under USERRA and a noncovered employee would be viewed 
in many instances as discrimination and would lead to a number 
of different disputes over that issue. I do not believe that 
that amendment would further the goals of USERRA, and I would 
ask that it not be adopted.
    With respect to potential applicants for military service, 
the amendment to include potential applicants within the scope 
of Section 4311(a) I do not believe is in keeping with what 
Congress initially intended regarding USERRA. According to the 
statutory purposes listed in USERRA, it is intended to provide 
protections to persons who actually choose to participate in 
military service to receive the act's benefits. Section 4301(a) 
makes that very clear.
    More importantly, however, attempting to determine who is a 
potential applicant for military service would be almost an 
impossibility for employers and for the courts. If the 
amendment is adopted, effectively every person from age 18 to 
40 would be included as a potential applicant for military 
service. Also, we would have to then define what is a potential 
application for military service. How far down the road do you 
need to go before you become a potential applicant?
    USERRA was designed to protect those persons who actually 
participate in military service. It was not enacted to advocate 
in favor of people of people participating in military service. 
That is what the proposed amendment, in my view, seeks to have 
happen. The committee should not support this proposed 
amendment.
    Finally, on the disparate impact theory, I believe that 
adding that would be unnecessary in light of the already broad 
protections provided by the act. As I am sure the committee is 
already aware, a disparate impact theory allows a plaintiff to 
challenge an employer's facially neutral policy. Here, USERRA 
policies are very broad already.
    The current disparate treatment analysis under USERRA 
already applies and provides full protection for employees. For 
example, an employer policy requiring a certain level of 
advance notice before leave is taken is already governed by 
USERRA. I do not think that you could find a disparate impact 
analysis that would not already be covered by a disparate 
treatment claim under USERRA.
    Mr. Chairman, I want to thank you and the members of the 
committee for your time here today.
    [The statement of Mr. Wood follows:]

               Prepared Statement of George R. Wood, Esq.

    USERRA currently provides employees who perform service in the 
uniformed services with broad protections. If fact, it is one of the 
broadest federal leave statutes in existence. USERRA currently provides 
significant rights, benefits and protections to employees regarding 
military service, including the ability to take up to five (5) years of 
leave, be reinstated in most instances to the position the employee who 
have attained had he or she remained continuously employed, obtain 
benefit protection while on leave, and be protected against 
discrimination or retaliation on the basis of military service or 
participation into an investigation regarding a possible USERRA 
violation.
    In my experience, most employers understand the significant 
sacrifices being made by their employees who, either voluntarily and 
involuntarily, serve in the uniformed services. To serve our country, 
these employees are putting their lives on hold, if not also risking 
their lives for those who remain behind. In recognition of these 
sacrifices, a number of employers provide benefits to employees on 
military leave that are not provided to employees on other types of 
leave, such as supplemental compensation, employer-paid medical 
benefits and benefit accrual during leave. It has not been my 
experience that employers seek to shirk their duties and obligations 
under USERRA, as reasonably interpreted.
    The Committee is considering four (4) potential amendments to 
USERRA: (1) An amendment to the definition of ``benefit of employment'' 
found in 38 U.S.C. Sec.  4303(2) to include wages as a benefit of 
employment;\1\ (2) An amendment to 38 U.S.C. Sec.  4311 to explicitly 
prohibit discrimination against potential applicants for membership in 
a uniformed service; (3) An amendment to 38 U.S.C. Sec.  4311 to permit 
covered employees to bring a claim based on a disparate impact 
analysis; and (4) An amendment to require states receiving federal 
funding to waive their Eleventh Amendment immunity rights. For the 
reasons set forth below, I believe that the first three amendments 
should not be adopted by the Committee. I take no position on the 
fourth.
---------------------------------------------------------------------------
    \1\ This would be accomplished by deleting the phrase ``other than 
wages or salary for work performed'' from the definition of ``benefit 
of employment'' found in Section 4303(2).
---------------------------------------------------------------------------
Summary of positions
    1. Amending the definition of ``benefit of employment'' to include 
wages as a benefit covered by USERRA would unduly expand the scope of 
the protections offered under 38 U.S.C. Sec.  4311(a), which currently 
protects ``initial employment,'' ``reemployment,'' ``retention in 
employment'' and ``promotion,'' along with ``any benefit of 
employment,'' for any person who ``applies to be a member of, performs, 
has performed, applies to perform, or has an obligation to perform 
services in the uniformed services.'' Including wages as a ``benefit of 
employment'' would hamper an employer's ability to make legitimate 
distinctions in wages between employees based on valid differences 
between the work experiences and educational backgrounds of different 
employees.
    2. Amending 38 U.S.C. Sec.  4311 to include ``potential 
applicants'' for military service would make the discrimination 
prohibitions found in USERRA unworkable for employers. It would, in 
essence, include all persons, ages 18 to 40, within the scope of 
USERRA's discrimination protections regardless of whether an employee 
ever truly intends to apply for service in the uniformed services. The 
current definition properly protects those persons who actually apply 
for service in the uninformed services and creates a workable and 
effective prohibition against discrimination that is already effective.
    3. Amending 38 U.S.C. Sec.  4311 to include a ``disparate impact'' 
analysis is unnecessary. Under the current provisions of USERRA, any 
employer policy that violates the rights of a covered employee is 
already governed by USERRA. A disparate impact analysis (which applies 
to facially neutral policies that have the effect of discriminating 
against a protected class of persons) would be redundant.
    4. As stated above, I take no position with respect to amending 
USERRA to require states receiving federal funds to waive their 
Eleventh Amendment immunity rights.
Proposed amendments to USERRA
    1. Amending the definition of ``benefit of employment'' found at 38 
U.S.C. Sec.  4303(2) to include wages is unnecessary and may deny 
employers the ability to make legitimate wage distinctions between 
employees based on valid criteria.
Statement of position
    USERRA provides that an employer may not deny, among other things, 
any ``benefit of employment'' to an applicant or employee based of that 
person's uniformed service membership, application for membership, 
performance of service, application for service, or other uniformed 
service obligation. 38 U.S.C. Sec.  4311(a). The current definition of 
``benefit of employment'' excludes ``wages or salary for work 
performed.'' 38 U.S.C. Sec.  4303(2); see also 20 C.F.R. Sec.  1002. 
5(b). The Committee is considering an amendment to the definition of 
``benefit of employment'' to delete the phrase ``other than wages or 
salary for work performed'' from the language of Section 4303(2), 
thereby including wages within that definition. This proposed amendment 
should not be adopted.
    The Committee's consideration of an amendment to Section 4303(2) is 
apparently based on the Eight Circuit Court of Appeals' decision in 
Gagnon v. Sprint Corp., 284 F.3d 839, 852-53 (8th Cir. 2002). In 
Gagnon, the plaintiff claimed discrimination under Section 4311(a) 
based on a $1,000 difference in pay between himself and another 
employee. Id. The District Court granted the defendant summary judgment 
on this claim, holding that there was no basis for a claim of 
discrimination due to this slight pay differential. The Eighth Circuit 
affirmed this ruling, properly noting that wages are not included 
within the definition of ``benefit of employment'' under Section 
4303(2). Significantly, however, no evidence of discrimination based on 
wages existed in Gagnon.
    To amend the definition of ``benefit of employment'' to include 
wages would unduly impair an employer's ability to make legitimate 
distinction in wages between employees. Employers seeking to make 
legitimate wage distinctions would be faced with the prospect of a 
claim under USERRA every time a USERRA covered employee is involved. 
Congress' initial passage of USERRA recognized this potential impact on 
employers by protecting employment (along with reemployment, 
advancement and termination from employment and employment benefits), 
while steering clear of specifically mandating wage protections for 
covered employees. To include wages with the definition of ``benefit of 
employment'' under Section 4303(2) would vastly alter the legal 
landscape for employers with respect to wage distinctions. The result 
of this amendment is likely to be that employers will be forced to pay 
USERRA covered employees the same as non-covered employees (regardless 
of legitimate differences in education or experience) in order to avoid 
disputes over this issue. Thus, rather than creating a level playing 
field for covered employees, USERRA would create a benefit for covered 
employees not provided to non-covered employees. This change would not 
be in keeping with the purposes of USERRA, one of which is to 
``eliminate disadvantages to civilian careers which can result from'' 
uninformed service. The amendment would, in effect, create an advantage 
for uniformed service that is not available to other employees.
    The power of this amendment should not be ignored. Faced with 
potential litigation over pay disputes, employers may be forced to pay 
covered employees more and create an inequitable scale vis-a-vis other 
employees. To do otherwise would subject employers to expensive and 
time consuming litigation over the issue of a pay distinction between 
several employees. This is true regardless of whether the pay 
differential is based on legitimate criteria.
    It also may be reasonably anticipated that the amendment would lead 
to additional litigation in our already overburdened federal courts 
regarding, as in Gagnon, a wage distinction as small as $1,000.
    The present discrimination prohibitions in Section 4311(a) 
(including protection for employment, reemployment, advancement and 
retention of employment) properly and adequately protect covered 
employees against all proper forms of discrimination, without unduly 
impacting an employer's legitimate decisions regarding wages. The 
Committee should recommend against adoption of the amendment.
    2. Amending 38 U.S.C. Sec.  4311 to explicitly prohibit 
discrimination against ``potential'' applicants for membership in a 
uniformed service.
Statement of position
    USERRA currently protects from discrimination or retaliation a 
person who is a member of, applies to be a member of, performs, has 
performed, applies to perform, or has an obligation to perform service 
in a uniformed service. 38 U.S.C. Sec.  4311(a). The Committee is 
considering an amendment to Section 4311(a) that would broad the scope 
of these protections to include persons who are ``potential'' 
applicants for service membership. Section 4311(a) should not be 
expanded to apply to ``potential'' applicants for uniformed service, 
for good and practical reasons.
    The proposed amendment to extend USERRA protections to 
``potential'' applicants for uniformed service is premised upon a 
single case arising in the Southern District of New York. In Podszus v. 
City of Mount Vernon, N.Y., No. 06-cv-13771, 2007 U.S. Dist. LEXIS 
57868 (S.D. N.Y. July 12, 2007), the court held that an individual who 
chose not to submit an application for membership in a uniformed 
service (allegedly due to urgings of his employer) was not entitled to 
protection under Section 4311(a). In so ruling, the court noted that 
USERRA does not extend to potential applicants to uniformed service.
    The proposed amendment to extend USERRA's protections to 
``potential'' applicants for uniformed service disregards the purposes 
of USERRA and presents a significant dilemma for practical application.
    First, contrary to the implication of the proposed amendment, the 
Congressional purpose of USERRA is not to advocate membership in a 
uniformed service by protecting the potential for such service. See 38 
U.S.C. Sec.  4301(a). Rather, the purpose of USERRA is to provide 
protections to those persons who actually choose to participate in 
military service. See id. The distinction is not without a difference 
as it relates to the proposed amendment. Protecting ``potential'' 
applicants under USERRA would, in effect, create a Congressional 
preference for military service. This is not USERRA's intent. Id.
    Second, the proposed extension of USERRA's protections to 
``potential'' applicants presents problems for practical application as 
the amendment. Who qualifies as a ``potential'' applicant? What minimum 
affirmative steps toward membership does one have to take to qualify as 
a ``potential'' applicant? What remedies does a ``potential'' applicant 
qualify for under USERRA (since the ``potential'' applicant has never 
applied for leave and has never been denied any benefits)? It would be 
difficult, if not impossible, to practically and properly define when 
an individual qualifies as a ``potential'' applicant or the 
circumstances of a ``potential'' application. As a practical matter, 
anyone of military service eligible age, i.e., 18 to 40 years of age, 
could claim USERRA protections as a ``potential'' applicant. In 
addition, USERRA entitles service members to the equitable relief of 
restoration to prior civilian employment status or damages to 
compensate for wages or benefits lost in connection with the civilian 
employment. USERRA does not provide damages to compensate an individual 
for some anticipated (and speculative) loss of service benefits or 
other damages resulting from the alleged inability to join the service. 
Such was not the intent of USERRA. To amend USERRA to include 
``potential'' applicants would expand its reach beyond reasonable 
bounds. (For example, the Age Discrimination in Employment Act protects 
persons ages 40 to 70, not those persons who have the ``potential'' of 
reaching age 40.)
    The existing USERRA definitions make clear that in situations when 
an individual has not yet applied for service, he or she is simply not 
eligible for USERRA's statutory protections. There is no ambiguity in 
this definition; it is both clear and workable in practical application 
and it neither encourages nor discourages application for membership in 
the uniformed services. This definition is working well, and is not in 
need of amendment.
    3. Amending 38 U.S.C. Sec.  4311 to explicitly prohibit employer 
policies, procedures and practices that have a ``disparate impact'' on 
service members and others who are protected by USERRA is unnecessary.
Statement of position
    Extending the already broad protections of USERRA to include a 
disparate impact analysis sometimes used under other discrimination 
statutes in unnecessary. USERRA's current protections are appropriately 
analyzed under the standard ``disparate treatment'' legal analysis. In 
fact, given that any employer policy that has the actual effect of 
discriminating against a covered employee is already within the scope 
of USERRA, no disparate impact analysis is required.
    While the proposed amendment seeks to include protections from 
facially neutral policies that have a ``disparate impact'' on uniformed 
service members, this largely dormant theory is rarely used and will be 
difficult to apply in USERRA circumstances. The disparate impact theory 
applies where a facially neutral policy has a significant adverse 
impact on a protected class of employees. See Griggs v. Duke Power Co., 
401 U.S. 424 (1971). If protected class employees prove that a neutral 
practice causes a disparate impact on them, the employer may 
demonstrate that the practice ``is job related for the position in 
question and consistent with business necessity.''
    Unlike other statutes such as Title VII of the Civil Rights Act of 
1964, there is under USERRA only one class of protected persons--those 
meeting the criteria set forth in Section 4311. Thus, an employer's 
treatment of such persons through various policies need not to be 
analyzed as a ``disparate impact,'' since the disparate treatment 
analysis already exists and is applicable.
    Moreover, it is difficult, if not impossible to envision a 
situation where an employer's policies are not already be governed by 
the disparate treatment analysis already applicable under USERRA. For 
example, a facially neutral employer policy requiring two (2) seeks 
advanced notice before taking a leave of absence would already be 
governed by 38 U.S.C. Sec.  4312(a)(1). Similarly, a policy limiting 
the amount of unpaid leave an employee may take would be governed by 38 
U.S.C. Sec.  4312(c). I cannot envision an employer policy that would 
not be already fall within the scope of the disparate treatment 
analysis used under USERRA if the policy attempts to alter the already 
specific and detailed requirements of the statute.
    Finally, it will be difficult and impracticable to apply a 
disparate impact analysis to situations involving alleged USERRA 
violations. Individual employers do not typically have significant 
numbers of USERRA covered employees compared to the employer's entire 
employee population, let alone a statistically significant population 
of such employees. Because a disparate impact analysis typically 
requires the use of experts and sophisticated statistical methods and 
findings, for any given employer, it will be difficult to obtain a 
sufficient statistical group upon which to apply the analysis for 
purposes of USERRA. See El v. SEPTA, 479 F.3d 232 (3d Cir. 
2007)(dismissing employee's disparate impact claim where employer's 
policy barred the hiring of persons who had conviction records); Malave 
v. Potter, 320 F.3d 321 (2d Cir. 2003)(employer may defend disparate 
impact claim by showing the statistical sample used by the employee is 
too small to establish an inference of discrimination); Shutt v. Sandoz 
Crop Protection Corp., 923 F.2d 722 (9th Cir. 1991)(statistical 
disparities must be sufficiently substantial in order to raise an 
inference of causation, and the statistical evidence may not be 
probative if the data is small or incomplete).
    Given the current breadth of existing USERRA statutory protections 
under the disparate treatment analysis, there is no need to extend 
disparate impact protections to covered employees under USERRA. Current 
statutory protections, therefore, are appropriately analyzed under the 
``disparate treatment'' theory of discrimination (which requires 
evidence of actual discriminatory intent). No appropriate basis exists 
to include a disparate impact analysis.
    4. Amending USERRA to require States to waive their Eleventh 
Amendment immunity rights in order to seek federal funding.
Statement of position
    I take no position with respect to this issue.
                                 ______
                                 
    Chairman Andrews. Thank you very much, Mr. Wood.
    Ms. Piscitelli, welcome to the subcommittee.

 STATEMENT OF KATHRYN PISCITELLI, MEMBER, EGAN LEV AND SIWICA, 
                              P.C.

    Ms. Piscitelli. Chairman Andrews and members of the 
subcommittee, good afternoon.
    I am Kathryn Piscitelli from Orlando, Florida. My remarks 
today will focus on several issues that I urge the subcommittee 
to look at to improve USERRA's protection of our service 
members in civilian employment: one, mandatory arbitration; 
two, disparate impact; three, federal funding as a hook to 
override state sovereign immunity; four, wage discrimination; 
and, five, protection of potential applicants for military 
service.
    I know that during this hearing, you are also taking 
testimony on the huge problem of employers imposing mandatory 
arbitration as a condition of employment. Mandatory arbitration 
is also a major problem for returning service members under 
USERRA. However, the Civil Rights Act of 2008, H.R. 5129, of 
which you are an original co-sponsor, Chairman Andrews, would 
solve the mandatory arbitration problem under USERRA. I very 
much appreciate your leadership and co-sponsorship of H.R. 
5129, and I urge Congress to pass it as soon as possible.
    H.R. 5129 also would improve protection of service members 
under USERRA in another significant way, by providing a federal 
funding hook to trump states' 11th Amendment immunity from 
private suits for monetary relief. USERRA makes available to 
state employees the same monetary remedies as it does for 
private and local government employees. Yet, in the wake of 
Supreme Court decisions narrowing the circumstances under which 
federal laws can effectively override state immunity, it has 
become virtually impossible for individuals to bring private 
action against state employers under USERRA.
    The way out of this conundrum is to amend USERRA to 
condition states' receipt of federal funding on their waiver of 
11th Amendment immunity. That is precisely what H.R. 5129 would 
do.
    Again, thank you, Chairman Andrews, for your co-sponsorship 
of this crucial legislation.
    USERRA's prohibition on military-related discrimination 
would be strengthened by amending USERRA to clarify that the 
act protects through Section 4311(a) against employment 
policies and practices that on their face are 
nondiscriminatory, but have a disparate impact on service 
members.
    Although other statutes expressly provide for disparate 
impact claims, USERRA does not. As a result, there is judicial 
uncertainty as to whether disparate impact claims are available 
under USERRA. Amending the statute would remove the cloud of 
doubt and thereby ensure that service members who are harmed by 
facially neutral policies and practices have a remedy under 
USERRA.
    Removing or redrafting the exemption of wages or salary for 
work performed from the definition of ``benefit of employment'' 
at Section 4303, Subsection 2 of USERRA is warranted as well. 
The exemption evidently was included to clarify that USERRA 
does not require payment of wages or salary to employees when 
they are away for military service and thus not performing work 
for their employers.
    But the exemption is ambiguous and, as a result, can and, 
in fact, has been misconstrued as authorizing pay 
discrimination against service members. This is truly not an 
outcome that Congress intended when it enacted USERRA.
    In addition, I recommend amending Section 4311(a) to 
explicitly prohibit discrimination against potential applicants 
for membership in the uniform service. In enacting USERRA, 
Congress clearly intended that potential applicants for the 
service would fall within the ambit of the act's ban on 
service-related discrimination.
    However, there is no express provision to this effect in 
the statute. In the absence of express protection for such 
persons, there is a risk that employers will deter employees 
from joining the military and that courts will do nothing to 
stop them.
    In conclusion, protection of our service members in 
civilian employment will be improved if mandatory arbitration 
is abolished and USERRA is amended by providing for disparate 
impact claims, adding a federal funding hook to override state 
immunity, clarifying the wage exemption from the ``benefit of 
employment'' definition, and explicating discrimination against 
potential applicants for military service.
    It is great that Congress is looking into these issues.
    I appreciate the opportunity to testify today.
    [The statement of Ms. Piscitelli follows:]

  Prepared Statement of Kathryn Piscitelli, Esq., USERRA Practitioner

    Chairman Andrews and Members of the Subcommittee, good afternoon. I 
am Kathryn Piscitelli, of Orlando, Florida. I am a USERRA practitioner 
and have taken a special interest in USERRA since its enactment. I am a 
member of the National Employment Lawyers Association (NELA). In 2004, 
I served as Chair of NELA's USERRA Task Force, which prepared NELA's 
comments on the Department of Labor's then-proposed USERRA regulations. 
I have been active in educating other lawyers about USERRA, including 
giving seminar presentations on and writing articles and other 
publications about USERRA, as well as providing guidance to lawyers who 
represent USERRA claimants.
    Since USERRA's enactment in 1994, I have tracked case law and other 
developments under USERRA and have seen how valuable the statute can be 
to returning servicemembers. I have also, however, seen a number of 
ways in which the statute could be strengthened, to provide more 
comprehensive protection for these employees. I think most people would 
agree that we should do as much as we can to ensure that the men and 
women who return to civilian life from Iraq, Afghanistan, and indeed 
any military service, are able to pick up their lives again with as 
little disruption as possible. These people have made major sacrifices 
and should not be subjected to diminished employment opportunities as a 
result of their lengthy, and sometimes repeated, absences from the 
workplace.
    My remarks today will focus on several issues that I urge the 
subcommittee to look at to improve USERRA's protection of our 
servicemembers in civilian employment: (1) mandatory arbitration; (2) 
disparate impact; (3) federal funding as a ``hook'' to override state 
sovereign immunity; (4) wage discrimination; and (5) protection of 
potential applicants for service. I think that if Congress did these 
five things, it would strengthen USERRA's protection of servicemembers 
from discrimination, foster elimination of unnecessary barriers to 
equal employment opportunity for servicemembers, and help 
servicemembers who have suffered violations of their rights under 
USERRA by improving the Act's enforcement and remedial provisions.
Mandatory arbitration
    I know that during this hearing you are also taking testimony on 
the huge problem of employers imposing mandatory arbitration as a 
condition of employment. Mandatory arbitration is also a major problem 
for returning servicemembers attempting to get their jobs back under 
USERRA. In fact, in 2006, the Court of Appeals for the Fifth Circuit 
held that USERRA claims are subject to mandatory arbitration under the 
Federal Arbitration Act, despite express language in Section 3402(b) of 
USERRA prohibiting contracts (among other things) that limit any 
``right or benefit'' provided by the law, ``including the establishment 
of additional prerequisites to the exercise of any such right or the 
receipt of any such benefit.''1
    However, the Civil Rights Act of 2008 (H.R. 5129), of which you 
were an original co-sponsor, Chairman Andrews, would solve the 
mandatory arbitration problem under USERRA. I very much appreciate your 
leadership in co-sponsoring H.R. 5129, and urge Congress to pass it as 
soon as possible.
Federal funding ``hook''
    H.R. 5129 also would improve protection of servicemembers under 
USERRA in another significant way--by providing a federal-funding hook 
to trump states' Eleventh Amendment immunity from private suits for 
monetary relief. USERRA makes available to state employees the same 
monetary remedies as it does for private and local government 
employees. Yet, in the wake of Supreme Court decisions narrowing the 
circumstances under which federal laws can effectively override state 
immunity, it has become virtually impossible for individuals to bring 
private actions against states under USERRA. The way out of this 
conundrum is to amend USERRA to condition states' receipt of federal 
funding on their waiver of Eleventh Amendment immunity. That is 
precisely what H.R. 5129 would do. Again, thank you, Chairman Andrews, 
for your co-sponsorship of this crucial legislation.
Disparate impact
    USERRA's prohibition on military-related discrimination would be 
strengthened by amending USERRA to clarify that the Act protects 
against employment policies and practices that on their face are 
nondiscriminatory but have a disparate impact on servicemembers. 
Although other statutes expressly provide for disparate impact claims, 
USERRA does not. As a result, there is judicial uncertainty as to 
whether disparate impact claims are available under USERRA.2 Amending 
the statute would remove the cloud of doubt and thereby ensure that 
servicemembers who are harmed by facially neutral policies and 
practices will have a remedy under USERRA.
Wage discrimination
    Removing or redrafting the exemption of ``wages or salary for work 
performed'' from the definition of ``benefit of employment'' at Section 
4303(2) of USERRA is warranted as well. This exemption evidently was 
included to clarify that USERRA does not require payment of wages or 
salary to employees when they are away for military service and thus 
not performing remunerable work for their employers.3 But the exemption 
is ambiguous and, as a result, can be and, in fact, has been 
misconstrued as authorizing pay discrimination against servicemembers.4 
This is surely not an outcome that Congress intended when it enacted 
USERRA.
Protection of potential applicants for service
    In addition, I recommend amending Section 4311(a) to explicitly 
prohibit discrimination against potential applicants for membership in 
a uniformed service. In enacting USERRA, Congress clearly intended that 
potential applicants for the service would fall within the ambit of the 
Act's ban on service-related discrimination.5 However, there is no 
express provision to this effect in the statute. In the absence of 
express protection for such persons, there is a risk that employers 
will deter employees from joining the military, and that courts will do 
nothing to stop them.6
Conclusion
    In conclusion, protection of our servicemembers in civilian 
employment will be improved if mandatory arbitration is abolished and 
USERRA is amended by providing for disparate-impact claims; adding a 
federal-funding hook to override state immunity; clarifying the wage 
exemption from the benefit-of-employment definition; and explicitly 
prohibiting discrimination against potential applicants for military 
service.
    It's great that Congress is looking into these issues. I appreciate 
the opportunity to testify.
                                endnotes
    \1\ Garrett v. Circuit City Stores, Inc., 449 F.3d 672 (5th Cir. 
2006).
    \2\ See, e.g., Miller v. City of Indianapolis, 281 F.3d 648, 651 
(7th Cir. 2002) (leaving open the question of ``whether a disparate 
impact claim can be prosecuted under USERRA'').
    \3\ See S. Rep. No. 103-58 (1993) at 41 (``[S]ection 4303(2) would 
define * * * `benefit of employment' * * * as any advantage, profit, 
privilege, gain, status, account, or interest (other than wages or 
salary for work not performed while absent from employment) that 
accrues by reason of an employment contract or an employer practice or 
custom and includes by way of illustration the various attributes of 
the employment relationship that might be affected by an absence from 
employment.'') (Emphasis added.)
    \4\ See, e.g., Gagnon v. Sprint Corp., 284 F.3d 839, 852-53 (8th 
Cir.) (because ``benefit'' as defined in USERRA excludes wages or 
salary for work performed, employee could not bring claim alleging that 
employer discriminated against him by paying a him lower starting 
salary because of his military background), cert. denied, 537 U.S. 1001 
and 537 U.S. 1014 (2002).
    \5\ See H.R. REP. No. 103-65, pt. 1, at 23 (1993), as reprinted in 
1994 U.S.C.C.A.N. 2449, 2456 (``Section 4311(a) would reenact the 
current prohibition against discrimination which includes 
discrimination against * * * current employees who seek to join Reserve 
or National Guard units * * *'') (citing Boyle v. Burke, 925 F.2d 497 
(1st Cir. 1991)). In Boyle, a case under USERRA's predecessor 
legislation, the court found that the law protected against policies 
that deter employees from joining the reserves. See Boyle, 925 F.2d at 
502.
    \6\ See, e.g., Podszus v. City of Mount Vernon, N.Y., No. 06 Civ. 
13771, 2007 WL 2230106 (S.D. N.Y. July 12, 2007) (employee's claim 
alleging that employer violated Sec.  4311(a) by denying him permission 
to join Navy Reserve was dismissed because as potential, rather than 
actual, applicant for service, employee was not protected under Sec.  
4311(a)).
                                 ______
                                 
    Chairman Andrews. Thank you very much.
    I want to thank the entire panel for very illuminating and 
well-thought-out testimony. Thank you, each of you.
    We will begin with the questions.
    Mr. de Bernardo, your organization keeps track of data on 
these arbitration issues?
    Mr. de Bernardo. We do not, but we do keep track of the 
data that is generated by research out there----
    Chairman Andrews. Could you tell us----
    Mr. de Bernardo [continuing]. Many of which is included in 
the testimony.
    Chairman Andrews. How many people, when presented with an 
application or employment contract that have a mandatory 
arbitration clause, refuse to sign it and get hired anyway? Do 
you know?
    Mr. de Bernardo. I have never seen statistics in that 
regard.
    Chairman Andrews. Do you know if any are available?
    Mr. de Bernardo. I have never seen them. I would be 
interested to know that as well.
    Chairman Andrews. I would be very interested. If you now, I 
would invite you to supplement the record.
    Ms. Jones, did anybody explain to you that the agreement 
you signed with Halliburton had this binding arbitration 
provision in it?
    Mr. Jones. No, I found out about the arbitration clause in 
my contract when I came home and sought legal representation 
for a civil suit. You know, I was 20 years old at the time. I 
would not even have known what arbitration was or probably how 
to even pronounce it.
    Chairman Andrews. And I am just going to ask you based on 
your experience. When you applied for the job at Halliburton, 
when did you sign the contract? Was it the end of the process 
or after you were interviewed?
    Mr. Jones. We had to go to a month of training before we 
were to go Iraq, and it was the last day of that month of 
training, and it was an 18-page document, and it was a very 
tiny paragraph.
    Chairman Andrews. Did anyone explain to you at any time 
during that month that if you agreed to work for Halliburton, 
you would not be able to pursue a claim in court?
    Mr. Jones. No, I had no idea.
    Chairman Andrews. Did anyone who was your fellow trainee 
ask?
    Mr. Jones. No.
    Chairman Andrews. How old were your fellow trainees at the 
time?
    Mr. Jones. Some were older. It was an array of ages.
    Chairman Andrews. Did anyone at Halliburton advise you that 
you should talk to a lawyer before you sign the contract?
    Mr. Jones. No.
    Chairman Andrews. Again, on a very personal level, I am 
sorry you have to be here today. I just have an awful lot of 
respect for what you have been able to do, and I hope the 
result of what you have been able to do is that others will not 
be subject to not only the personal violations you have 
suffered, but the violation of your rights, and we appreciate 
that.
    Mr. Jones. Right.
    Chairman Andrews. I want to ask Mr. Wood a question about 
his testimony about USERRA.
    You make a comment in your testimony that the amendment in 
front of us would, in effect, create an advantage for uniform 
service that is not available to other employees.
    I just want you to focus on these facts for a minute that, 
you know, a person builds a book of business, goes away because 
he has volunteered to serve in the armed forces, comes back and 
the book of business is taken away, and the person has to start 
all over again, whereas the person he sat next to in the 
cubicle next door does not enlist in the armed forces, spends 
those 2 years furthering his or her book of business, and is 
able to have a substantially higher income. Is that fair, do 
you think?
    Mr. Wood. Mr. Chairman----
    Chairman Andrews. Is that fair to the person that 
volunteers to wear the uniform?
    Mr. Wood. Mr. Chairman, I have read through the facts. I do 
not know that I can comment on Mr. Serricchio's case, but I 
know that----
    Chairman Andrews. I am actually not asking you to comment 
on his case. The hypothetical that I put to you.
    Mr. Wood. The hypothetical that you gave--I guess I would 
have a couple of questions to figure out effectively why the 
work went away because between the time Mr. Serricchio left and 
the time he came back, there were a lot of different factors 
that happened. I think a lot of people lost a lot of business.
    Under the factors that you gave, there has to be a decision 
made. Yes, if his book of business was taken away and not given 
back, that would be one thing. But if because he left, his book 
of business decreased because of other economic factors, I 
guess I do not know. I am not sure where we put the burden 
here. Are we putting the burden on the employer or----
    Chairman Andrews. Well, it seems pretty obvious the burden 
falls on the person who volunteers to wear the uniform and goes 
away. I mean, if you have a client-based business and you 
cannot be there to service the clients for that 2-year period, 
it seems to me it is kind of inevitable that the business is 
going to go away.
    Mr. Serricchio, what do you think would have been a fairer 
accommodation under your facts when you came home? What would 
have been fair for the employer to do, in your opinion?
    Sergeant Serricchio. Well, sir, thank you. Under USERRA, 
under the statute, it clearly states that the returning veteran 
is to be brought back at the pay status, the seniority, the 
benefits, the marketability that he or she would have attained 
as if they never had left.
    There are at minimum a few points that probably could have 
been entertained, one of which would have been to offer me a 
salary comparable to what it would have been had I never gone 
while I rebuilt my business. If that was not an option, perhaps 
handing accounts over that could have yielded a comparable 
salary, again, to afford me the time to rebuild my business.
    What was basically offered to me was the same rate of pay 
that a commissioned broker gets, and it is essentially 
meaningless if you have nothing to apply that rate to, if your 
assets are gone, if your book is business is gone, and some of 
these options came from Captain Samuel Wright who actually 
spent the better part of 37 years putting together the product 
that we all know as USERRA.
    So, sir, to answer the question, I think those were some of 
the points that could have been entertained.
    Chairman Andrews. I appreciate that.
    My time has expired.
    And we now turn to Mr. Kline for his 5 minutes.
    Mr. Kline. Thank you, Mr. Chairman.
    And thank you to the witnesses for your trip here, for your 
patience, and for your excellent testimony.
    And I am on the green light-red light system as well, so I 
have about 5 minutes. I am not sure where to start. It is quite 
an array out there.
    So, if you will just bear with me, I will kind of shotgun 
my way through, getting away from the rifle shot program that I 
was talking about earlier.
    Mr. Serricchio, could I just ask for the record, did your 
employer pay you while you were in uniform?
    Sergeant Serricchio. Sir, I was gone, as I mentioned in my 
testimony. I was given a 1-year activation when I first was 
activated, and into that first year, we were subsequently given 
a second term.
    Mr. Kline. Okay.
    Sergeant Serricchio. During the first----
    Mr. Kline. Thank you. Thank you. I appreciate that very 
much.
    Sergeant Serricchio. Can I answer?
    Mr. Kline. Really, I am very limited on time, and I have 
nine more witnesses. Thank you. I need to keep moving through 
here.
    Ms. Jones, I want to add my apologies as well. I mean, this 
is awful what has happened to you. I cannot imagine what the 
other side of your story is. I know in many of these cases that 
there are two sides to every story, and I suppose there are two 
sides to yours, too. I just cannot imagine what it is. It is 
just absolutely atrocious.
    Mr. de Bernardo, in looking at Ms. Jones's case, a couple 
of things I want to sort of cover here. There is nothing in 
your understanding of the arbitration rules or anything that 
prevents criminal action being taken care of in court, right?
    Mr. de Bernardo. That is correct.
    Mr. Kline. These are criminal acts here----
    Mr. de Bernardo. That is right.
    Mr. Kline [continuing]. And, in my judgment, it is pretty 
clear that somebody needs to be in jail, and there is nothing 
that would preclude that. Is that right?
    Mr. de Bernardo. That is correct.
    Mr. Kline. Okay. And then I am led to believe--and I just 
need some clarification here--and we are probably not going to 
get the answer to all of these in a few minutes, but is it 
possible for a government agency to bring a civil claim on Ms. 
Jones's behalf?
    Mr. de Bernardo. Yes, you cannot waive your rights under, 
for example, the EEOC, Title VII, with mandatory arbitration or 
not. You still have that recourse of going to EEOC or to a 
state agency. You cannot waive that prior to a dispute, post-
dispute, at any time.
    Mr. Kline. I see.
    Mr. de Bernardo. So that would be the example that would be 
most common and applicable.
    Mr. Kline. Well, it is such a horrible----
    Mr. de Bernardo. It certainly sets a precedent.
    Mr. Kline. It is such a horrible situation. I would just 
like to think that there are some other remedies out there, and 
certainly criminal court--but this is so appalling. There is no 
possible explanation of----
    Mr. de Bernardo. And beyond the criminal justice system is 
the civil justice system as well, in which, obviously, 
litigation is being pursued in that regard.
    Mr. Kline. Civil litigation is being pursued?
    Mr. de Bernardo. Damages. Well, I understand that there is 
the civil suit that is pending as well.
    Mr. Kline. And the arbitration rules do not preclude that?
    Mr. de Bernardo. I do not know what the status is. You 
know, I was asked to testify on----
    Mr. Kline. Okay. Could I ask Ms. Jones? You are trying to 
pursue civil action in civil court and being told you cannot? 
Is that right?
    Mr. Jones. By the other side. It is pending before the 
judge whether or not it would be fair to arbitrate my claim or 
not.
    Mr. Kline. Okay. Still to be determined?
    Mr. Jones. Right.
    Mr. Kline. Okay. Thank you very much.
    And then, Mr. Wood, in view of the changes that were 
proposed by Ms. Piscitelli--I probably messed that up. I know. 
I am sorry.
    Ms. Piscitelli. That is fine.
    Mr. Kline. Can you expand on your concerns which you 
started to set forth in your testimony in regards to the 
changes that she has proposed?
    Mr. Wood. Yes. Thank you, Mr. Kline.
    Mr. Kline. You will probably only be able to pick one of 
them, so----
    Mr. Wood. Right. I think the biggest concern that I would 
have at this point would be with the disparate treatment 
analysis simply because the breadth of USERRA is such that I 
cannot imagine a situation that would not be covered from an 
employer's policy perspective by USERRA to protect someone's 
rights. The disparate treatment analysis covers those 
adequately.
    I have handled cases where a lot of those issues have been 
raised. No one has ever sought a disparate impact analysis, and 
the problem with the disparate impact analysis is you have to 
have a statistically substantial sample of people to analyze 
and, typically, most employers do not have that many people out 
on leave. So it is very difficult to have that analysis applied 
to a case where you already have such broad protections.
    Mr. Kline. All right. Thank you.
    I see it is about to turn red. I will yield back, Mr. 
Chairman.
    Chairman Andrews. I thank the gentlemen.
    The Chair recognizes the gentlewoman from California, Ms. 
Sanchez, for 5 minutes.
    Ms. Sanchez. Thank you, Mr. Chairman. And I have to commend 
you for holding this hearing. I also chair the Commercial 
Administrative Law Subcommittee on the Judiciary which has 
jurisdiction over mandatory binding arbitration clauses and 
contracts, and we have had a number of hearings on this very 
issue in many different contexts, including in the nursing home 
context, home-building context, and also the employment 
context, which, I think, is a nice crossover issue for this 
committee.
    I would like to start with Ms. Jones and, again, echo the 
sentiments of our chairman. I think it is very courageous that 
you are here to talk about your story.
    Mr. Jones. Thank you.
    Ms. Sanchez. What do you think would have happened to you 
had you refused to sign that binding arbitration contract at 
the end of your training right before you were ready to deploy?
    Mr. Jones. I do not think I would have been hired.
    Ms. Sanchez. My guess is that you probably would not have 
been hired as well.
    You said that you really did not know much about binding 
arbitration, probably would not even know how to pronounce it. 
I am wondering, in your wildest imagination, would you have 
ever thought that signing that contract would have, for all 
intents and purposes, insulated criminal behavior like being 
drugged and raped from your coworkers? Could you have even 
imagined that that would have happened?
    Mr. Jones. I could have not ever imagined that, and I could 
never imagine signing my rights away to a trial by jury.
    Ms. Sanchez. That, I think, speaks to Mr. Foreman's concern 
about the way that mandatory binding arbitration changes the 
substantive rights that individuals have. Some of the problems 
that we have seen in the different contexts include a lack of 
ability to get full discovery. You have very limited discovery 
in arbitration. You do not have a trial by jury. In many 
instances, if there is a bad arbitration decision, there is no 
right to appeal.
    And so there is a whole plethora of rights that people sign 
away, not knowing, simply because they are looking to be 
employed and do not understand at the time that they are 
signing these contracts that all of these can come back to 
haunt them later.
    I am curious, Ms. Jones. Were you told by human resources 
at Halliburton about the sexual harassment and assaults that 
were occurring in Iraq?
    Mr. Jones. No.
    Ms. Sanchez. Did anybody talk to you about that?
    Mr. Jones. It was not disclosed.
    Ms. Sanchez. And do you think if you had known about that, 
you might have sort of considered whether or not you wanted, in 
fact, to go work there?
    Mr. Jones. I would not have gone, especially knowing that I 
was going to be placed in a predominantly all-male barrack in 
that type of atmosphere. I would not have gone.
    Ms. Sanchez. And do you think that Halliburton lived up to 
its part of the employment contract to provide you with an 
environment that was free from sexual harassment and abuse?
    Mr. Jones. Absolutely not.
    Ms. Sanchez. Thank you.
    Mr. de Bernardo, in reading your written testimony, you 
write that there would be winners and losers--and I am using 
your terminology--if H.R. 5129 is enacted, and in your written 
testimony, you say that the only winners would be plaintiffs' 
lawyers and undeserving employees.
    What about the employee sitting to your left that just 
testified on the panel today? Do you think Ms. Jones is an 
undeserving employee?
    Mr. de Bernardo. We are not here to talk about arbitration 
and H.R. 5129. As I have pointed out, Representative Sanchez, 
overwhelmingly, the people who participate in binding 
arbitration favor it, even after the process is done, which 
is----
    Ms. Sanchez. Something can be popular and still not be fair 
or just or, you know, adhere to our notions of fair play and 
justice in this country?
    Mr. de Bernardo. Well, there may be exceptions, but, in 
general, mandatory binding arbitration is a very positive 
workplace practice that is embraced by both sides, including 
plaintiffs' lawyers and defense lawyers, with respect to----
    Ms. Sanchez. I think the----
    Mr. de Bernardo [continuing]. Employees themselves.
    Ms. Sanchez. It depends sort of on your case, and it 
depends on what the outcome of your case is. Do you believe 
that there are no bad actors in the employer field?
    Mr. de Bernardo. No, of course not. I think there are bad 
actors in every field.
    Ms. Sanchez. Okay. If there is even one employer who is a 
bad actor, would not an injunction against bad practices and 
the imposition of punitive damages set an example that could 
perhaps be a deterrent against other employers engaging in that 
similar behavior?
    Mr. de Bernardo. You know, in the American Arbitration 
Association itself, there is more than 200,000 arbitrations a 
year. They are just one of the groups that provide arbitrators. 
There are literally hundreds and hundreds of thousands of 
arbitrations a year.
    Ms. Sanchez. But I am asking you----
    Mr. de Bernardo. What we know is----
    Ms. Sanchez. If there is a bad actor----
    Mr. de Bernardo. What we know is that in arbitration, 
employees are more likely to prevail than in litigation. They 
get higher median awards.
    Ms. Sanchez. I am going to have to stop you there because I 
do not believe that is the case. I believe in many instances 
employees who would like to litigate cases and find themselves 
trapped by binding arbitration cannot even find an attorney to 
take their case because they know that the deck is stacked 
against them in binding arbitration.
    Many times, you have the repeat arbitrator problem in which 
the employer pays for the arbitrator so they have a built-in 
incentive to rule on behalf of the employer because they are 
the ones that are footing the bill for their paycheck.
    The other----
    Mr. de Bernardo. No, I think just the opposite is true.
    Ms. Sanchez. The other----
    Mr. de Bernardo. I think there is more access----
    Ms. Sanchez. Pardon me.
    Mr. de Bernardo [continuing]. To justice through 
arbitration.
    Ms. Sanchez. The other issue that I want to sort of dispute 
is you said that there are less legal fees in arbitration than 
there are if you litigate. Arbitration oftentimes saddles the 
claimants with a whole plethora of extra fees that they would 
not be charged had they gone to court.
    The National Arbitration Forum charges $75, for example, to 
issue a subpoena, which is provided for free by the court 
system. The NAF also charges fees for discovery requests of 
$150 and continuances of $100, which are also free if a 
litigant is actually in court.
    Chairman Andrews. Excuse me. Could we just wrap up and have 
him answer the question?
    Ms. Sanchez. Sure. I am interested in knowing when you talk 
about what is cost effective, is what is cost effective to the 
employer always cost effective to the employee in the 
arbitration setting?
    Mr. de Bernardo. The clients of Jackson Lewis and, 
certainly, the clients that I advise pay for all the expenses 
of arbitration and mediation. Typically, it is a two-step 
process, mediation, then arbitration, or a three-step process, 
informal mediation, formal mediation, and then arbitration. I 
certainly would advise all employers and certainly employers 
that I am familiar with to pay all the costs of arbitration.
    What you do not have in arbitration is giving 33 percent or 
40 percent of whatever the award is to a plaintiffs' lawyer. 
That does not occur in arbitration. It does happen in lawsuits.
    Ms. Sanchez. I recognize that my time has expired, and I 
would just say, in many instances, that is the only access to 
legal recourse that wronged employees have, and with that, I 
will yield back.
    Thank you, Mr. Chairman.
    Chairman Andrews. I thank the gentlelady very much.
    The Chair recognizes the gentleman from Louisiana, Dr. 
Boustany, for 5 minutes.
    Dr. Boustany. Thank you, Mr. Chairman.
    Mr. de Bernardo, one concern we have heard from the other 
side of the aisle in particular is that arbitration agreements 
are too often one-sided or unfair and that an employee is 
unduly disadvantaged by these one-sided agreements.
    In your experience and observation, are the courts 
routinely enforcing one-sided or lopsided arbitration 
agreements, and are the courts adequately serving their 
gatekeeper function to ensure that unfair or unbalanced 
agreements are struck down?
    Mr. de Bernardo. Congressman, I am a defense lawyer in 
employment areas. You know, perhaps the single most important 
aspect of evaluating a case when it comes in is who the judge 
is, who is going to be assigned. There is a great variety in 
terms of the judiciary; who has appointed the judge and what 
his or her philosophy is. Our case assessment very heavily 
relies on the judge that is going to be assigned.
    As I mentioned in my testimony, if you want fairness in 
America, go to arbitration because there is much more balance, 
you are much more likely to get somebody who is balanced and 
neutral in arbitration than you are going to court. So, yes, I 
would say arbitration is a very viable alternative in that 
regard, more predictable.
    Dr. Boustany. Thank you. Do you think employers are duping 
employees into waiving criminal law protections with regard 
specifically to these binding arbitration agreements? I mean, 
are you aware of any cases where employers are deliberately 
trying to deceive employees with regard to waiving their----
    Mr. de Bernardo. No, I am not aware, and, in fact, if there 
were those cases, then I think, you think, there is a potential 
cause of action for the individual, and if they have been 
deceived by the employer into signing potentially a document 
that they were lied to about, then, sure, I think there is a 
cause of action that exists there.
    Dr. Boustany. Thank you.
    And with regard to H.R. 5129 and the issue of 
retroactivity, is it your testimony that this bill would strike 
down every employment agreement previously entered into under 
employment law, and what about pending arbitrations, cases 
already in process? What would happen to those cases?
    Mr. de Bernardo. Yes, it is my opinion that what we have in 
the United States are in excess of a million existing, valid, 
and enforceable mandatory binding arbitration agreements in 
employment that would be rendered null and void by this 
sweeping action.
    Some of those agreements have been in place for decades 
with employees. Some are involving very senior executives. Some 
are very enthusiastically embraced by the employees. You know, 
there are many, many success stories on how this has been 
successful, how it makes for better employers and improved 
morale, and yet regardless of what the employee's intent, 
desire, preference is, those agreements would be prohibited.
    Dr. Boustany. Thank you.
    Ms. Piscitelli, where would you draw the line on disparate 
impact? Have you given some thought to that?
    Ms. Piscitelli. Where would I draw the line----
    Dr. Boustany. Yes.
    Ms. Piscitelli [continuing]. Between what is not and what 
is?
    Dr. Boustany. Yes.
    Ms. Piscitelli. Well----
    Dr. Boustany. I mean, would not that be a difficult issue 
and create a lot of confusion?
    Ms. Piscitelli. Well, I would like to say one thing. I 
think that the act already does prohibit disparate impact. 
Section 4311(a) does not require intentional discrimination. It 
specifically says that ``a person who is a member of, applies 
to be a member of, performs, has performed, applies to perform, 
or has an obligation to perform service in a uniformed service 
shall not be denied initial employment, reemployment, retention 
in employment, promotion, or any benefit of employment by an 
employer on the basis of that membership, application for 
membership, performance of service, application for service, or 
obligation.''
    There is nothing in that protection that specifically 
prohibits intentional discrimination. It is broad enough to 
include disparate impact. The problem arises with subsection C 
of 4311 which says that ``an employer shall be considered to 
have engaged in actions prohibited'' by the section that the 
employees or the applicants, service or membership in the 
service, or application for service is a motivating factor.
    So I think that is already there.
    I do not see why disparate impact would be more of a 
problem under USERRA than the Americans with Disabilities Act. 
The Americans with Disabilities Act includes on the prohibition 
of discrimination on the basis of disability standards, 
practices, policies that have a disparate impact on either one 
person with a disability or a group of people.
    So a class of one type of disparate impact model is already 
found in one of our federal employment statutes.
    Dr. Boustany. Mr. Wood, could you comment on that?
    Mr. Wood. Yes, sir, Mr. Boustany. I would say that the 
issue with the disparate impact claim is really with the claim 
itself because it is not a well-received claim in the courts. 
It is based on statistics. You have competing experts. You do 
not have really witnesses coming in and testifying about what 
happened or what did not happen.
    You have an expert on each side that comes in and takes 
this set of assumptions and this one takes this set of 
assumptions, and if you change the assumptions slightly, the 
statistics change drastically and, ultimately, you end up in a 
situation where you are really not litigating over a case of 
what happened to whom or what happened to one person or 
another. You are litigating over statistics.
    Dr. Boustany. Thank you.
    I see my time has expired. Thank you, Mr. Chairman.
    Chairman Andrews. I thank the gentleman.
    The Chair recognizes the gentleman from Pennsylvania, Mr. 
Sestak, for 5 minutes.
    Mr. Sestak. Thanks, Mr. Chairman.
    I just have two comments and maybe a question over here.
    First, Sergeant, I joined up during the Vietnam War when 
there was a draft, and I spent 35 or so years in the military. 
I had never known until now that USERRA did not cover wages. I 
just do not understand it. I have watched ever since Desert 
Storm how indispensable our Reserve, Guard, et al., are.
    Just for comment, I just cannot believe that those who wear 
the cloth of our nation and come overseas to help the active 
are not given the equal wage consideration.
    Chairman, I was taken by your--again, I was a fire marshal 
my first couple of years in the military, along with other 
things, and I have always felt very strongly that, you know, 
your service is not dissimilar to the sergeant's. What 
distinguishes you is you share in your career what is 
different, the dignity of danger.
    Now here you are twice the citizen, as Winston Churchill 
said, ready to go forward anywhere and help out, and all you 
are asking for is 14 days to help society. Again, it just seems 
to be a no-brainer to me.
    But my question is over here. Now 30-some years defending 
the right for people to have a trial, their day in court, I 
lived in a system where we did not get arbitration when one of 
my family members lost her taste because a military doctor went 
through and perforated it down her stomach and then lost her 
taste. We did not even get the right to arbitration, never mind 
the right to court, in the military. I was always taken by 
that.
    So, when I sit back and I ask you what is your standard for 
goodness here, I look at what you say, ADR gives us more 
resolve, they resolve themselves sooner, they seem to give us 
better workplaces. What is your real definition or standard 
where you can kind of sit back and say, ``Yes, we had really 
better outcomes,'' not just more efficiency?
    Mr. de Bernardo. Well, yes, my point there, Congressman, is 
that employers are better----
    Mr. Sestak [continuing]. Answer to that is--the reason I 
bring that up is how do we know if we have no transparency on 
what the outcome is. I mean, the three branches of government 
were set up so one was a check and a balance on someone else. 
What is the check and the balance on the private company or the 
arbitrator if you cannot see what the results are?
    Mr. de Bernardo. Okay. There are a couple of questions 
there. The check and the balance is something I mentioned 
before, that you cannot waive your rights under Title VII. You 
cannot waive it before a dispute, after a dispute. You still 
have that option of going to----
    Mr. Sestak. A civil right.
    Mr. de Bernardo. Yes, your civil rights.
    Mr. Sestak. But I was not talking on that.
    Mr. de Bernardo. Okay. As far as, you know, this idea of 
your day in court, I was trying to make that point earlier in 
terms of access to justice. Arbitration provides a means for 
access to justice that would be denied to the vast majority of 
people who go into dispute resolution programs or ADR programs. 
Those complaints simply would not be embraced.
    The National Work Rights Institute has constantly said and 
testified up here on the Hill. There is a threshold of about 
$75,000 for plaintiffs' lawyers. They are not going to accept 
cases typically unless they think that there is a recovery of 
$75,000 or more. The majority of employment disputes--a clear 
majority--an overwhelming majority--involve a dollar amount 
less than that.
    So what happens to those people? Where do they go if you do 
not have an arbitration process?
    In fact, one of the areas in which we practice, I 
practice----
    Mr. Sestak. Could you answer one of my questions about not 
being able to see all the results? You know, the arbitration 
clause says ``and the results are to be kept confidential.''
    Mr. de Bernardo. And so the question is?
    Mr. Sestak. And how do we assess whether this is a good 
system that is working well and fairly?
    Mr. de Bernardo. Well, one of the ways we assess it is the 
way that I talked about in the testimony, both written and 
verbal, which is what about those people who participated in 
mandatory binding arbitration and, as I mentioned repeatedly, 
overwhelmingly, they are supportive and they say that they will 
do it again.
    Mr. Sestak. My time is up.
    I guess my take has always been, for a concluding comment, 
is if a company does feel as though they are right, why do they 
worry about going into court to defend the goodness of what 
they have done?
    And so I kind of sit back and am quite taken by you, Mr. 
Foreman. It is the pre-dispute issue here for me, that you are 
precluded from going forward. I have always looked at laws----
    And if I could just have 30 more seconds, Mr. Chairman.
    Chairman Andrews. Sure.
    Mr. Sestak. I have always looked at laws as kind of keeping 
the barbarians from the gate, and that is what courts, of 
course, do, messy as it might be, and it just seems when I look 
at Ms. Jones that it is pretty obvious that a private company 
did not keep the barbarians from her, and it is a private 
company that we are relying upon in arbitration really. It is 
not an open system, a court of law.
    Thank you.
    Chairman Andrews. Thank you. The gentleman's time has 
expired.
    The Chair recognizes the gentleman from Illinois, Mr. Hare, 
for 5 minutes.
    Mr. Hare. Thank you, Mr. Chairman.
    And thank you all for coming today.
    Mr. Serricchio, my friend, Mr. Kline, was asking you a 
question, and he had a lot of people that he was trying to get 
answers from, I understand, but you were trying to answer, I 
think, the second part of that question. I would like to, you 
know, maybe use some of my time in 5 minutes, if you would not 
mind, to respond to the second part that you did not get a 
chance to.
    Sergeant Serricchio. Thank you, sir. In regards to if 
Prudential had paid me while I was activated, I was activated 
first for 1 year and subsequently given a second year 
activation. For the first year, Prudential did pay me. However, 
I was required to agree that I would pay that back from 
commissions earned when I was reinstated back into work.
    So they paid me for the year, but, ultimately, I was going 
to be required to pay that back, and, again, when I had come 
back, there was nothing left to pay that remedy, sir.
    Mr. Hare. Thank you. And I have to tell you I think what 
happened to you was inexcusable. I mean, we are supposed to be 
taking care of the people who fight to defend this country, and 
then you come back, and you have that happen to you, and I just 
want you to know I am very sorry that that happened to you, you 
know.
    And, Ms. Jones, let me just, you know, thank you for having 
the courage to come today. And I know this has been asked 
before, but I am having a really hard time trying to get my 
mind to wrap around this. You signed this, right?
    Mr. Jones. Yes.
    Mr. Hare. But you really did not even know what you were 
signing, I guess, at the time, right?
    Mr. Jones. Well, it was an 18-page document, and it talked 
about travel and all this stuff, so--yes.
    Mr. Hare. Well, listen, I thank you for the courage to 
come, you know, this afternoon and to share this.
    Mr. Foreman, you state in your testimony that the Supreme 
Court has ruled that mandatory arbitration agreements should 
only alter the forum in which employment disputes are resolved, 
and some other things, too, yet employees are not being told 
when they sign these agreements that they waive their access to 
rights through the courts.
    How can we reestablish the intent of these agreements to 
only alter the forum in which these disputes are settled? That 
is like a three-part question for you with probably about 2 
minutes to go here. And how can we ensure that the employees 
that are not intimidated are given partial information to 
convince them to sign away their rights?
    I, again, just find that what happened, you know, to Ms. 
Jones is just absolutely mindboggling, that we would actually 
have contractors that would put people in that type of 
situation.
    Mr. Foreman. Thank you, Congressman.
    On that point, I think the way the bill addresses this, 
particularly with pre-dispute binding arbitration, solves a lot 
of those issues because once you ban that, everyone is very 
used to entering into arbitration agreements when it is 
voluntary and knowing.
    And to my colleague's point here, he keeps citing 
statistics about how overwhelmingly popular these are, but they 
are arbitration agreements where people actually had a dispute, 
they knew what they were giving up, they were advised by 
counsel, and they chose this forum. So, naturally, they are 
happy with that.
    Back to sort of just bridging that to the retroactivity 
question, if our colleagues are correct that everyone loves 
these, I would think that if it is retroactive, the vast 
majority of the individuals would continue to operate under 
these binding arbitration agreements because they have proven 
to be effective in that sense.
    Mr. Hare. Mr. de Bernardo, the survey that you have 
referenced today, it sounds to me--this is by the National 
Arbitration Forum--the evidence seems to be pretty one-sided 
here. I would argue that the survey is probably flawed because 
it is not scientifically conducted or reviewed. Lawyers 
received an e-mail allowing them to fill out this survey so 
that it was self-selecting and biased because it only shows the 
point of view of the attorneys involved in arguing arbitration.
    I wonder if you could maybe elaborate on this. In other 
words, I think, with all due respect, sir, you are quoting a 
survey that is statistically flawed. It is like polling people 
that do not exist or giving them the answer to the question and 
then they submit it.
    Mr. de Bernardo. Yes, Mr. Hare. I quote the statistics. All 
the statistics are out there. Overwhelmingly, the statistics 
are in favor of ADR, as are overwhelmingly the constituencies 
that are involved and/or the public in general, 83 percent. So, 
you know, one of the reasons that we cite statistics is because 
statistics are in our favor. The research is in our favor. The 
research is----
    Mr. Hare. Would it be possible, with all due respect, that 
they are in your favor because the only people that are 
answering this are the lawyers that received an e-mail asking 
them their opinion?
    Mr. de Bernardo. You know, it is an ABA survey, and the 
American Bar Association conducts a survey, and 86 percent of 
their lawyers come out with an opinion, I think that is pretty 
conclusive.
    Chairman Andrews. The gentleman's time has expired.
    Mr. Hare. Thank you, Mr. Chair.
    Chairman Andrews. Thank you very much.
    The Chair recognizes the gentleman from Massachusetts, Mr. 
Tierney, for 5 minutes.
    Mr. Tierney. Thank you, Mr. Chairman.
    I want to thank all the witnesses for their testimony 
today.
    I am concerned with this arbitration aspect only in the 
sense, as Mr. Foreman indicates, that people do not get to make 
a choice when it is the best time for them to make the choice, 
at the time of dispute. It seems to me that, you know, there 
are situations in the past where, you know, people that are at 
that point in time have to know what is at risk. They have to 
know.
    And I think, you know, you can cite people saying that they 
are in favor of arbitration. I wonder how many of those people, 
because they were locked into arbitration ahead of time, 
actually understood how their final recovery compared to what 
they might have received had they been advised by an attorney 
as to punitive damages that they cannot get in arbitration and 
other things of that nature.
    Mr. de Bernardo. You know, I am of the opinion--I said it 
in the testimony. I am saying it verbally--mandatory binding 
arbitration is decisively pro-employee. It is both pro-employee 
and pro-employer.
    Mr. Tierney. Mr. Foreman, I want to go to you because I 
have a decisively different opinion of that, having practiced 
for over 20 years and having been on the other side of this, 
that most people when they come in have no idea what their 
anticipated recovery is..
    Mr. de Bernardo. But the statistics that I gave, 
Representative, is those people who participated----
    Mr. Tierney [continuing]. Going to get. I am going to 
continue, and I will ask if I really want anything else on 
this. But the fact of the matter is that they know what it is 
they stand to risk--it is a whole different world than if they 
go through the process--and at they end they get something. And 
the statistics we see is they get about 20 percent of what they 
might be able to receive if they had gone to court in a lot of 
instances. That is serious business.
    They do not get any discovery necessarily. The arbitrator 
generally does not have subpoena power. The record is not 
public, so it is very hard to go back and look and see where 
the arbitrators involved in this case have come down on 
previous cases like that. So I think there is a lot of 
difficulty in that.
    And, Mr. Foreman, I would like your opinion on that, if I 
could.
    Mr. Foreman. And the most recent statistics support exactly 
what you are saying, and they are cited in our materials, that 
right now the current statistic is, if you are a plaintiff in 
an employment discrimination suit and you go to jury trial, you 
have a win rate of about 36 percent, whereas, if you go to 
arbitration, your win rate is about 21 percent.
    Mr. Tierney. Has it been your experience, you know, that 
the people sometimes go into arbitration if it is mandatory 
ahead of time without any appreciation for what their recovery 
might be had they gone through civil proceedings in court in 
front of a jury?
    Mr. Foreman. Exactly. And one of the issues is the point we 
have made repeatedly that people just do not understand either 
what they are giving up or when they are giving it up, and they 
do not think they have any other choice in the matter.
    Mr. Tierney. Are you familiar with any statistics as to the 
number of incidents where it is mandatory arbitration that 
required a venue to be at a place that is inconvenient to a 
plaintiff in that case?
    Mr. Foreman. There is a whole litany of issues, and the 
cases repeatedly cover this, where you give up your right to a 
choice of forum, location, and ability to subpoena witnesses. 
Timeframes are significantly shortened. Again, that is a lot of 
the issues that need to be dealt with, and when Congress spent 
all this time passing these civil rights laws, my hope would be 
that you want them enforced in a way that they were passed.
    Mr. Tierney. Mr. Serricchio, if I could change gears for a 
second, you indicated, in your answer to Mr. Kline's question, 
that you had two years in the service active duty, but 1 year 
is what you went in understanding you were going to have. But 
you never had a chance to answer as to whether or not your 
company compensated you for any portion of that while you were 
active duty.
    Sergeant Serricchio. For the first year, I was compensated. 
I was required to pay that back once I returned to work. So I 
was essentially given a loan. I would have to pay that back 
once I returned to work through money earned through 
commissions. When I returned to work, there was nothing to 
apply that to. The book of business was gone.
    Mr. Tierney. Mr. Wood, based on what you heard from Mr. 
Serricchio's testimony on his case, do you think that he got a 
fair result, that his employer treated him appropriately under 
the law?
    Mr. Wood. Congressman, I do not know that I can testify or 
talk about what Mr. Serricchio's issue is.
    Mr. Tierney. You do not think you can give an opinion based 
on the facts that he presented from his side?
    Mr. Wood. There are two sides on every story.
    Mr. Tierney. Right, but now my question was not about two 
sides. My question was: Based on the facts as he stated them, 
if they were true, do you think that he got fair treatment 
under the law?
    Mr. Wood. Congressman, I think ultimately he got a loan of 
$90,000 for a time period that could have been totally unpaid 
under USERRA. His employer was not required to pay him anything 
under USERRA. They could have told him to go for 2 years and 
lived with nothing. He got a loan from his employer.
    Having read the papers that have been submitted to the 
court, I think he got a very fair deal, yes.
    Mr. Tierney. So you think his employer complied with the 
law?
    Mr. Wood. Based upon what I have seen of the court papers, 
yes, sir.
    Mr. Tierney. Okay. Thank you.
    I yield back, Mr. Chairman.
    Chairman Andrews. Thank you very much.
    The Chair recognizes the gentleman from Iowa, Mr. Loebsack, 
for 5 minutes.
    Mr. Loebsack. Thank you, Mr. Chair. At this time, I do not 
have any questions, having just arrived, and I would like to 
yield my 5 minutes, if I may, to Ms. Sanchez.
    Ms. Sanchez. I would like to thank the gentleman for 
yielding.
    I am interested, Mr. Foreman, do you know what prompted the 
rise in the use of mandatory--or what the initial purpose of 
mandatory binding arbitration was? What context? Are you 
familiar with that?
    Mr. Foreman. Well, if you go back in, I think, the Federal 
Arbitration Act was passed in 1925, and I think the purpose was 
really to deal with commercial arbitration disputes between 
businesses, but it has morphed into stealing rights away from 
victims of employment discrimination.
    Ms. Sanchez. I could not agree with you more. The initial 
purpose of it was two sophisticated entities, two businesses, 
could enter into these mandatory binding arbitration contracts 
so that they could resolve disputes without going into the 
legal system, and it was meant for people of basically equal 
footing.
    In your opinion, do you think that employers and employees 
who are seeking employment are on equal footing when they sit 
down to negotiate employment contracts?
    Mr. Foreman. Absolutely not. I mean, unless you are walking 
in to get the coaching job for the Washington Redskins, no.
    Ms. Sanchez. Thank you.
    And I am wondering if you are familiar with the repeat 
player effect in mandatory binding arbitration?
    Mr. Foreman. Yes, and the repeat player effect, again, is 
in some of the data that we cited in our materials. It is that 
employers tend to use the same arbitrators, and the more and 
more those arbitrators win, the employees win less and the 
amount they win is less.
    Ms. Sanchez. And does that strike you as some kind of 
inherent conflict of interest if you are using the same person 
over and over again and--surprise, surprise--they seem to be 
ruling in your favor in a disproportionate amount of time?
    Mr. Foreman. Absolutely, and, I mean, it is the old adage, 
you are not going to bite the hand that feeds you, and if you 
keep coming back, you are not going to get further 
arbitrations.
    Ms. Sanchez. The issue we talked about a little bit of 
waiving substantive rights includes things like limited ability 
for discovery, limited ability for the plaintiff to subpoena 
witnesses, no jury trial. And, interestingly enough, is it not 
true that arbiters are not confined to follow the law when they 
render their decisions?
    Mr. Foreman. Well, I think it is something, Congresswoman, 
that you mentioned earlier, is that the appeals rights from an 
arbitration decision are extremely limited.
    Ms. Sanchez. So, if an arbitrator, for example, wanted to 
decide a case and decided, you know, ``I think I am just going 
to flip a coin to determine who should win this case,'' in some 
instances, is it not true, it would be very difficult to appeal 
a decision of an arbitrator who basically flipped a coin to 
decide a case?
    Mr. Foreman. It is extremely hard to overturn an 
arbitrator's decision as you move forward.
    Ms. Sanchez. Thank you.
    I think all of those things underscore some of the inherent 
trouble that I have dealing with mandatory binding arbitration, 
specifically when you are talking about oftentimes 
unsophisticated parties who are asked to sign these without 
really understanding or knowingly waiving all of these rights 
that are built into our legal system, but, unfortunately, are 
not explained to them at the time these contracts are entered 
into.
    I had an experience not too recently where I went to a 
dentist because I had a crown come off of my tooth. I am a 
lawyer by training, and I am reading the form that I am 
supposed to fill out, and I had to agree to go to mandatory 
binding arbitration if I felt that there was less a degree of 
care in terms of dealing with the tooth problem. And when you 
have that kind of pain, you are almost willing to sign anything 
to get the dentist to see you, and I do not necessarily think 
even as a sophisticated attorney that I was on a level playing 
field with a doctor who is in a position of strength when you 
enter into bargaining. And that is just another illustration of 
some of these problems that I see.
    Mr. Serricchio, I wanted to start by thanking you for your 
service. I have an employee actually in my district office, 
Patrick Rodriguez, who is an Iraqi veteran. He took a leave of 
absence because he was sent to Iraq. I know his wife and family 
very well, and I simply am stunned by Wachovia's attitude 
towards your leave and their basically saying that, you know, 
they are going to put you in a position where you are unable to 
support your wife and child, specifically after you responded 
to a call of duty on behalf of your country. And given your 
experience with Wachovia, I am interested in knowing what would 
you tell friends or colleagues who were considering joining the 
Guards or Reserves after your experience?
    Sergeant Serricchio. I would support joining the Guard and 
Reserve. I followed in my brother's footsteps who still is in 
active duty and over in Iraq now. That was my deciding factor. 
I would not discourage people against joining the Guard and 
Reserve.
    With my situation, it came back to when I came back, out of 
the military and reinstated back into work, where the area 
became a problem, but as far as me suggesting people to join, I 
think it is a great opportunity. I think that the----
    Ms. Sanchez. Would you ask them to consider what might 
happen to them when they come back after their service?
    Sergeant Serricchio. Well, I can speak from experience from 
people over in Saudi Arabia and people in Massachusetts that I 
served with that it was a concern for everybody, you know, 
being away for a year and then being away for a second year and 
then some people on to a third year, what life would be like 
after they returned. It is fearful for everybody, especially 
when you do come back, and you find that nothing is waiting for 
you.
    But as far as suggesting anybody to join it, I think it is 
a great opportunity. I would not deter anybody from joining.
    Ms. Sanchez. Thank you, and I thank you for your service.
    I thank the gentleman for yielding.
    Chairman Andrews. The gentleman's time has expired.
    We would like to thank this panel for very thoughtful, 
comprehensive testimony. I think the committee will, 
unfortunately, ask you to contribute more because, as we 
continue our deliberations on these subjects, I know that each 
of the contributions you have made will be valuable.
    Thank you very, very much for your participation.
    I am going to ask if the members of the second panel would 
come forward, and in the interest of time, I am going to start 
to read their biographies, and we will get started with their 
testimony in just a moment.
    Richard Foltin is the legislative director and counsel at 
the American Jewish Committee, AJC. Mr. Foltin previously 
served as the AJC's New York director of governmental affairs 
and was counsel for that office. Mr. Foltin received his 
bachelor's from New York University and his JD from the Harvard 
Law School.
    Michael Gray is a partner in the law firm of Jones Day, 
focusing on representing corporate clients, including in 
employment discrimination lawsuits. He earned his BA from the 
University of Michigan in 1989 and his JD from Northwestern 
University in 1992 where he was on the editorial board of the 
Journal of International Law and Business.
    Ms. Zainab Al-Suwaij is executive director of the American 
Islamic Congress, AIC, an organization she co-founded after the 
September 11 attacks.
    Since then, Ms. Al-Suwaij has directed women's empowerment 
programs in Southern Iraq, lectured at Harvard, and 
participated in interfaith events around the world. She was 
named an ambassador of peace by the Interreligious and 
International Peace Council.
    Ms. Al-Suwaij is the granddaughter of one of Basra's 
leading clerics, and was one of the few women that joined the 
failed 1991 intifada uprising against Saddam Hussein.
    Welcome, and we are happy to have you with us.
    Judy Goldstein is a speech therapist from New Jersey.
    Good judgment, Ms. Goldstein. She is involved in volunteer 
projects in her community, working with special needs children 
to develop their speech and language skills.
    James Standish is the director of Legislative Affairs, 
Public Affairs, and the Religious Liberty Department for the 
Seventh-Day Adventist Church. Mr. Standish is also deputy 
secretary general for the U.S. legislative affairs for the 
International Religious Liberty Association.
    Mr. Standish received his bachelor's degree from Newbold 
College in England, his MBA from the Darden Graduate School of 
Business at the University of Virginia, and a JD from the 
Georgetown University Law Center.
    Finally, Helen Norton is an associate professor of law at 
the University of Colorado Law School. Professor Norton has 
taught at Colorado since 2007. Before entering academia, 
Professor Norton served as deputy assistant attorney general 
for civil rights at the U.S. Department of Justice. She earned 
her BA from Stamford University in 1986 and her JD from the 
University of California at Berkeley.
    We have assembled a very distinguished panel for which we 
are grateful.
    I did want to note in advance that the primary author of 
the bill we have under consideration, Representative McCarthy, 
is with us, and a co-sponsor of that bill, Representative 
Souder, a Republican member of the committee, was scheduled to 
be with us, but has had flight problems because of weather.
    And I have offered to both of our colleagues the chance to 
make a statement. I think Ms. McCarthy has declined that 
opportunity, as I understand it. She would rather hear from the 
witnesses. And Mr. Souder would also be welcome, however, as 
would Ms. McCarthy, to submit a written statement for the 
record in recognition of their leadership on this issue.
    So we will begin with Mr. Foltin. I think you were in the 
audience and heard the ground rules a long time ago that your 
written testimony will be accepted without objection into the 
record.
    We would ask you to summarize your written testimony in 
about 5 minutes. When the yellow light appears, it means you 
have a minute left to go. When the red light appears, we would 
ask that you summarize your testimony.
    We are delighted that each of you would come from far-flung 
places to be with us today.
    And, Mr. Foltin, we will start with you.

STATEMENT OF RICHARD FOLTIN, LEGISLATIVE DIRECTOR AND COUNSEL, 
                   AMERICAN JEWISH COMMITTEE

    Mr. Foltin. Mr. Chairman, Ranking Member Kline, members of 
the subcommittee, thank you for this opportunity to testify on 
the Workplace Religious Freedom Act, important bipartisan civil 
rights and religious liberty legislation, introduced by 
Representatives Carolyn McCarthy and Mark Souder, and we are 
grateful for their championing of this issue.
    My name is Richard Foltin. I serve as legislative director 
and counsel for the American Jewish Committee, and I have the 
privilege of serving also as co-chairman, together with my co-
panelist James Standish, of the coalition promoting passage of 
the Workplace Religious Freedom Act, a broad coalition of over 
40 religious and civil rights groups that span the political 
and religious spectrum, reflecting the robust diversity of 
American religious life.
    With the permission of the Chair, I would like to offer for 
the record a letter of support signed by a number of 
organizations supporting passage of WRFA.
    Chairman Andrews. Without objection.
    [The information follows:]

      Organizations Supporting the Workplace Religious Freedom Act
 
 
 
Agudath Israel of America           Islamic Supreme Council of America
American Jewish Committee           Jewish Council for Public Affairs
American Jewish Congress            Jewish Policy Center
Americans for Democratic Action     NA'AMAT USA
American Islamic Congress           National Association of Evangelicals
American Values                     National Council of the Churches of
Anti-Defamation League                Christ in the U.S.A.
Baptist Joint Committee on Public   National Jewish Democratic Council
 Affairs                            National Sikh Center
Bible Sabbath Association           North American Council for
B'nai B'rith International            Muslim Women
Center for Islamic Pluralism        North American Religious
Central Conference of American        Liberty Association
 Rabbis                             Presbyterian Church (USA)
Christian Legal Society             Rabbinical Council of America
Church of Scientology               Religious Action Center of Reform
 International                       Judaism
Concerned Women for America         Republican Jewish Coalition
Council on Religious Freedom        Sikh American Legal Defense
Family Research Council               Education Fund
General Board of Church and         Sikh Council on Religion and
 Society,                            Education
  the United Methodist Church       Southern Baptist Convention, Ethics
General Conference of                 and Religious Liberty Commission
  Seventh-day Adventists            Traditional Values Coalition
Guru Gobind Singh Foundation        Union of Orthodox Jewish
Hadassah--WZOA                       Congregations
Institute on Religion and Public    Union for Reform Judaism
 Policy                             United Church of Christ
Interfaith Alliance                 Office for Church in Society
International Association of        United States Conference of
  Jewish Lawyers and Jurists          Catholic Bishops
International Commission on         United Synagogue of Conservative
  Freedom of Conscience               Judaism
International Fellowship of
  Christians and Jews
 

                                ------                                

    Mr. Foltin. As you know, current civil rights law defines 
the refusal of an employer to reasonably accommodate an 
employee's religious practice, unless such accommodation would 
impose an undue hardship, as a form of religious 
discrimination.
    This standard has been so weakened by the fashion in which 
it has been interpreted by the courts as to needlessly force 
upon religiously observant employees a conflict between the 
dictates of religious conscience and the requirements of the 
workplace.
    The good news, however, is that since the problems in this 
area turn on judicial interpretation of legislation, rather 
than constitutional doctrine, they are susceptible to 
correction by the U.S. Congress, and that is what the Workplace 
Religious Freedom Act is intended to do.
    Instead of the not more than de minims standard established 
by the Supreme Court in 1977, WRFA would define ``undue 
hardship'' as an action requiring significant difficulty or 
expense and would require that to be considered an undue 
hardship, the course of accommodation must be quantified and 
considered in relation to the size of the employer.
    WRFA would also require that to qualify as a reasonable 
accommodation, an arrangement must actually remove the 
conflict. The accommodation might, of course, constitute an 
undue hardship, but a toothless and confusing definition of 
``reasonable accommodation'' should not be utilized to avoid 
engaging in undue hardship analysis.
    Finally, in order to address issues raised at an earlier 
point by the business community, WRFA would add to existing 
religious accommodation law with clarifying language a 
provision that an employer need not provide a reasonable 
accommodation if, as a result of the accommodation, the 
employee will not be able to fulfill the essential functions of 
the job.
    As under the current interpretation of Title VII, WRFA does 
not give employees a blank check to demand any accommodation in 
the name of religion and receive it. Rather, it restores the 
protection Congress intended for religious employees in 
enacting the 1972 amendment by adjusting the applicable 
balancing test in the fashion that still gives substantial 
regard to the legitimate needs of business, even as it somewhat 
levels the playing field for an employee in need of 
accommodation.
    The factors that WRFA sets forth for determining what is an 
undue hardship are designed to make the determination context 
specific so that a relatively small employer might well not 
have to provide an accommodation, where a larger employer would 
have to do. Moreover, as an amendment to Title VII, WRFA simply 
does not apply to truly small employers with fewer than 15 
employees.
    Concerns have been raised that implementation of WRFA will 
lead to material adverse impacts on third parties. Those 
concerns have risen primarily in the context of two types of 
situations, that an employee will cite religious beliefs as a 
justification for harassing fellow employees perhaps on the 
basis of their sexual orientation and as well that because an 
employee asserts a religious concern about being involved in 
reproductive health care services that third parties would be 
denied essential services.
    As an organization that has a proud history of vigorous 
support for both reproductive rights and measures to protect 
against discrimination on the basis of sexual orientation--and 
there are a number of other such organizations in our 
ideologically diverse coalition--the American Jewish Committee 
would not be supporting WRFA if we thought that it would lead 
to such baleful results.
    Nothing in WRFA will alter the fact that courts are quick 
to recognize that workplace harassment imposes significant 
hardship on employers in various ways, and, similarly, nothing 
in WRFA will change the balancing test that courts will have to 
engage in to assure that an employee's religious objections to 
particular duties does not result in a denial or, for instance, 
an abortion, necessary pharmaceuticals, or police protection 
for abortion clinics.
    The courts clearly take impact on third parties very 
seriously as an element to undue hardship and, again and again, 
when these kinds of concerns arise, their analysis has not 
turned on the de minims standard. Moreover, the assertion of 
baleful results will flow from strengthening federal 
protections against religious discrimination are also without 
basis in the experience of prior efforts to enhance 
antidiscrimination law. For instance, in the law enacted by New 
York State in 2002 which strengthened its religious 
accommodation provisions.
    Chairman Andrews. Mr. Foltin, could we just ask you to 
summarize?
    Mr. Foltin. Sure.
    In conclusion, conjectural concerns unbuttressed by 
experience should not be allowed to override the very real need 
to remedy the harm faced by religious employees every day.
    Thank you.
    [The statement of Mr. Foltin follows:]

   Prepared Statement of Richard T. Foltin, Legislative Director and 
 Counsel, Office of Government and International Affairs, the American 
                            Jewish Committee

    Mr. Chairman, thank you for this opportunity to testify before the 
House Education and Labor Subcommittee on Health, Employment, Labor and 
Pensions on the Workplace Religious Freedom Act, important civil rights 
legislation introduced as H.R.1431 by Representatives Carolyn McCarthy 
and Mark Souder.
    And thank you, as well, Representatives McCarthy and Souder, for 
bringing this crucial religious liberty and antidiscrimination 
legislation to the fore. Your bipartisan effort sends exactly the right 
signal--that the effort to safeguard religious liberty and fight 
against religious discrimination is one that should, and must, bring 
together Americans from a broad range of political and religious 
persuasions.
    My name is Richard T. Foltin. I serve as Legislative Director and 
Counsel in the Office of Government and International Affairs of the 
American Jewish Committee. The American Jewish Committee was founded in 
1906 with a mandate to protect the civil and religious rights of Jews. 
Through the years, AJC has been a vigorous proponent of the free 
exercise of religion, not only for Jews, but for people of all faiths.
    I also have the privilege of serving as co-chairman--together with 
James Standish, legislative director of the General Conference of 
Seventh-day Adventists--of the Coalition for Religious Freedom in the 
Workplace. This broad coalition of over forty religious and civil 
rights groups--spanning the political spectrum and reflecting the 
robust diversity of American religious life--has come together to 
promote the passage of legislation to strengthen the religious 
accommodation provisions of Title VII of the Civil Rights Act of 1964. 
A list of the organizations comprising the coalition is appended to my 
testimony.
    Current civil rights law defines the refusal of an employer to 
reasonably accommodate an employee's religious practice, unless such 
accommodation would impose an undue hardship on the employer, as a form 
of religious discrimination. But this standard has been interpreted by 
the courts in a fashion that places little restraint on an employer's 
ability to refuse to provide religious accommodation, needlessly 
forcing upon religiously observant employees a conflict between the 
dictates of religious conscience and the requirements of the workplace.
    The Workplace Religious Freedom Act (WRFA) will promote the cause 
of protection of the free exercise of religion just as have two other 
bipartisan initiatives, the Religious Freedom Restoration Act (RFRA) 
and the Religious Land Use and Institutionalized Persons Act (RLUIPA), 
enacted into law in 1993 and 2000, respectively. WRFA is a similar 
response to the failure of the Supreme Court, and of lower courts 
following the high court's lead, to give due regard to the importance 
of accommodation of religious practice in a heterogeneous society.
The Need for WRFA
    Why is the Workplace Religious Freedom Act necessary? After all, in 
1972 the U.S. Congress amended the Civil Rights Act of 1964 so as to 
define as a form of religious discrimination the failure of an employer 
to reasonably accommodate an employee's religious observance unless 
such accommodation would impose an undue hardship on the employer's 
business.\1\ In so doing, Congress properly recognized that the 
arbitrary refusal of an employer to accommodate an employee's religious 
practice is nothing more than a form of discrimination. Unfortunately, 
this standard, set forth in section 701(j) of Title VII (42 U.S.C. 
section 2000e(j)), although appropriate on its face, has been 
interpreted by the Supreme Court and lower courts in a fashion that 
makes it exceedingly difficult to enforce an employer's obligation to 
provide religious accommodation.
    The constricted reading of section 701(j) is no small matter. RFRA 
and RLUIPA were enacted by Congress in order to extend important 
protections to all Americans from undue government encroachment on 
their religious liberties. But for many religiously observant Americans 
the greatest peril to their ability to carry out their religious 
faiths, on a day-to-day basis, may come in the workplace.
    Of course, many employers recognize that both they and their 
employees benefit when they mutually work together to find a fit 
between the needs of the workplace and the religious obligations of the 
employee. But it is not always so. In too many cases, employees who 
want to do a good job are faced with employers who will not make 
reasonable accommodation for observance of the Sabbath and other holy 
days.\2\ Or employers who refuse to make a reasonable accommodation to 
employees who must wear religiously-required garb, such as a yarmulke, 
a turban or clothing that meets modesty requirements.\3\ And the issues 
of holy day observance and religious garb, while accounting for a 
substantial portion of religious accommodation cases, far from exhaust 
the situations in which an employee is faced with an untenable choice 
because of an employer's failure to provide a reasonable accommodation.
    Based on figures released by the Equal Employment Opportunity 
Commission, the number of claims of religious discrimination in the 
workplace filed for the fiscal year ending on September 30, 2006, as 
compared to the fiscal year ending on September 30, 1992, reflect a 
startling increase of over 75 percent. During the same period, by 
comparison, claims involving racial discrimination declined slightly.
    Behind the filing of each claim is the story of an American forced 
to choose between his or her livelihood and faith. Frequently, those 
who put their faith first suffer catastrophic losses, including their 
homes, their health insurance, their ability to help their children 
through college, and, in some particularly sad situations, their 
marriages. Where employers have no good reason for refusing to make 
religious accommodation, Americans should not face such a harsh choice.
    One of the contributing factors to this dramatic rise in claims is 
the weakness of the accommodation provisions as currently written. 
Under current law, there is little incentive for recalcitrant employers 
to accommodate the religious beliefs of their employees. This does not 
deter people of faith in the workplace from asserting their rights, 
however, because many of them are unwilling to compromise their 
conscience no matter what the legal ramifications might be.
    But there are other factors behind the increase in religious 
discrimination claims as well. These include the movement toward a 
twenty-four-hours-a-day/seven-days-a-week economy, with consequent 
conflict with religious demands for rest and worship on Saturdays, 
Sundays, or holidays; our nation's increasing diversity, marked by a 
broad spectrum of religious traditions, some of which may clash with 
workplace parameters that do not take into account the religious 
observances of immigrant communities; latent animosity toward some 
religious traditions after the September 11 attacks, a phenomenon 
evidenced by a particularly severe spike in religious claims after the 
attacks, when Sikh and Muslim Americans faced greater hostility at 
work; and a growing emphasis on material values at the expense of 
spiritual ones, with some employers refusing to see any adjustment in 
workplace requirements to allow for religious practices.
    To be sure, beginning in the 1990s both the EEOC and the Justice 
Department have evidenced a commendable increase in attention to 
religious discrimination cases, including cases premised on an 
employer's failure to provide an appropriate accommodation of religious 
practice. But the government's ability to bring those cases 
successfully is necessarily limited by the strength of the underlying 
law. And the claims brought at the federal level are but the tip of the 
iceberg. Many such claims go through local or state processes instead. 
And we will never know of the many people who do not bring claims 
having been advised, whether by an enforcement agency or by private 
counsel, that the present law leaves them with no--or a vanishingly 
small chance of--recourse * * * and, therefore, to the choice of 
violating a religious precept or giving up a source of livelihood.
Hardison and Its Progeny
    The seminal Supreme Court case in this area is Trans World Airlines 
v. Hardison, 432 U.S. 63 (1977). Larry Hardison was a member of a 
seventh-day denomination, the Worldwide Church of God, who was 
discharged by Trans World Airlines because he refused to work on 
Saturdays in his position as a clerk at an airline-maintenance facility 
that required staffing 24 hours per day, 365 days per year. The U.S. 
Court of Appeals for the Eighth Circuit ruled that TWA had not provided 
an adequate religious accommodation. TWA, joined by the employees' 
collective-bargaining representative, filed an appeal with the Supreme 
Court contending ``that adequate steps had been taken to accommodate 
Hardison's religious observances and that to construe the statute to 
require further efforts at accommodation would create an establishment 
of religion contrary to the First Amendment of the Constitution.'' The 
Court did not reach the constitutional question; it determined, 
instead--in a 7-2 decision--that anything more than a de minimis cost 
to an employer would be an ``undue hardship'' for purposes of section 
701(j), and found that the proposed accommodations would have imposed 
such a cost. The Court also found that TWA had made reasonable efforts 
at accommodation.
    Hardison had proposed several proposed accommodations to his 
employer, two of which were found by the Court of Appeals for the 
Eighth Circuit to be reasonable: ``TWA would suffer no undue hardship 
if it were required to replace Hardison either with supervisory 
personnel or with qualified personnel from other departments. 
Alternatively, * * * TWA could have replaced Hardison on his Saturday 
shift with other available employees through the payment of premium 
wages.'' But the high court rejected ``[b]oth of these alternatives 
[because they] would involve costs to TWA, either in the form of lost 
efficiency in other jobs or higher wages. To require more than a de 
minimis cost in order to give Hardison Saturdays off is an undue 
hardship.'' 432 U.S. at 84.
    Although Justice Marshall's dissent in Hardison, joined by Justice 
William Brennan, argues that Trans World Airlines had not satisfied its 
obligation to reasonably accommodate even under the ``more than a de 
minimis cost'' definition of ``undue hardship,'' its more crucial point 
is that the Court's reading of section 701(j) reflects a determination 
by the Court that the Congress, in providing in the Civil Rights Act 
that an employer must make reasonable accommodation for religious 
practice, did ``not really mean what it [said].'' 432 U.S. at 86, 87. 
Justice Marshall went on to state:
    An employer, the Court concludes, need not grant even the most 
minor special privilege to religious observers to enable them to follow 
their faith. As a question of social policy, this result is deeply 
troubling, for a society that truly values religious pluralism cannot 
compel adherents of minority religions to make the cruel choice of 
surrendering their religion or their job. And as a matter of law 
today's result is intolerable, for the Court adopts the very position 
that Congress expressly rejected in 1972, as if we were free to 
disregard congressional choices that a majority of this Court thinks 
unwise. 432 U.S. at 87. In other words, the Court's reading of section 
701(j), in particular the de minimis interpretation of ``undue 
burden,'' so vitiates the obligation to reasonably accommodate as to 
result in ``effectively nullifying it.'' 432 U.S. at 89.\4\
    The history of religious accommodation litigation since 1977 bears 
out this vision. It would be an overstatement to say that employees 
seeking a reasonable accommodation of their religious practices never 
prevail in court, to say nothing of the many whose cases we never hear 
about because they and their employers work out an accommodation 
amicably. But a brief overview demonstrates that for the most part, to 
borrow the title of one law review article on the subject, ``heaven can 
wait.''
    Thus, one might expect a ``reasonable accommodation'' to be one 
that actually removes the conflict with religious practice, with 
employers then required to show an ``undue hardship'' before being 
relieved of the obligation to provide such an accommodation. To be 
sure, courts have in some instances interpreted the requirement of 
reasonable accommodation to mean just that. See Cosme v. Henderson, 287 
F.3d 152, 159 (2d Cir. 2002); Wright v. Runyon, 2 F.3d 214, 217 (7th 
Cir. 1993), cert. denied, 510 U.S. 1121 (1994). Nevertheless, there 
have also been disturbing cases in which courts have suggested that an 
accommodation of religious practice may be considered ``reasonable'' 
even where it would force an employee to compromise his or her 
religious beliefs or face termination. Thus, courts have held that 
employees' rights under collective bargaining agreements or other 
``neutral'' shift-allocation procedures are, in of themselves, 
reasonable accommodations even when those agreements make absolutely no 
provision for employee religious practices that may come into conflict 
with the requirements of the workplace. See Mann v. Frank, 7 F.3d 1365 
(8th Cir. 1993); Cook v. Chrysler Corp., 981 F.2d 336 (8th Cir. 1992), 
cert. denied, 508 U.S. 973 (1993). Just last month, the Eighth Circuit 
reaffirmed this troubling principle, holding in Sturgill v. UPS, 2008 
W.L. 123945 (Jan. 15, 2008), that even absent ``undue hardship'' an 
employer does not have an obligation to offer an accommodation that 
resolves an employee's religious conflict.
    But it is in the application of the Hardison Court's interpretation 
of ``undue hardship'' that religiously observant employees have most 
often come to grief. The absence of nontrivial economic cost to 
employers has not prevented the courts from finding, on the basis of 
quite dubious rationales, that the provision of a reasonable 
accommodation will amount to an undue hardship. In one case, Mohan 
Singh--a Sikh forbidden by his religious precepts from shaving his 
facial hair except in medical emergencies--applied for the position of 
manager at a restaurant where he was already employed, but he was 
denied the position because he would not shave off his beard. When the 
Equal Employment Opportunity Commission brought a religious 
discrimination claim on Mr. Singh's behalf, a federal district court 
ruled that ``relaxation'' of the restaurant's grooming standards would 
adversely affect the restaurant's efforts to project a ``clean-cut'' 
image and would make it more difficult for the restaurant to require 
that other employees adhere to its facial hair policy. EEOC v. Sambo's 
of Georgia, 530 F. Supp. 86 (N.D.Ga. 1981).
    Twenty-five years later, another federal district court, this time 
sitting in Massachusetts, ruled that it would be an undue hardship to 
require the Jiffy Lube automobile lubrication service to allow a 
Rastafarian who did not shave or cut his hair for religious reasons to 
work where he was visible to the public, compelling him to either work 
only in an underground ``lower bay'' or lose his job. Brown v. F.L. 
Roberts & Co, Inc., 419 F.Supp.2d 7 (D. Mass. 2006). Jiffy Lube had 
instituted a new policy that all employees making contact with the 
public should be well-groomed in order to promote the company's desired 
public image. The district court's opinion reflected an apparent 
discomfort with the decision even as it asserted that ``it is compelled 
by controlling authority.'' The court commented:
    [I]t is a matter of concern when the balance appears to tip too 
strongly in favor of an employer's preferences, or perhaps prejudices. 
An excessive protection of an employer's ``image'' predilection 
encourages an unfortunately (and unrealistically) homogeneous view of 
our richly varied nation. Worse, it places persons whose work habits 
and commitment to their employers may be exemplary in the position of 
having to choose between a job and a deeply held religious practice. 
419 F.Supp.2d at 19.
    Hardison also held that the existence of seniority provisions in a 
collective bargaining agreement serves as a basis to find undue 
hardship in the granting of an accommodation because, for instance, to 
allow the employee his Sabbath off would be in derogation of the 
seniority rights of another employee. The deference to seniority rights 
is unremarkable in light of Section 703(h) of Title VII (42 U.S.C. 
section 2000e-2(h)), which makes clear that ``the routine application 
of a bona fide seniority system [i.e., without intention to 
discriminate because of race, color, religion, sex, or national origin] 
would not be unlawful under Title VII.'' Teamsters v. United States, 
431 U.S. 324 (1977). But, all too often, the conclusion is reached that 
Section 703(h) bars an accommodation without further inquiry as to 
whether the bargaining representative might have been enlisted in a 
search for voluntary swaps or whether an exemption might be sought to 
provisions of the collective bargaining agreement that seem to stand in 
the way of an amicable arrangement (i.e., an arrangement that does not 
require a senior employee to give up his or her right not to work on a 
particular day).
    The Supreme Court's lead in restrictively reading section 701(j) 
has been reflected in lower court rulings on other aspects of how that 
provision is to be applied. In Brener v. Diagnostic Center Hospital, 
671 F.2d 141 (5th Cir. 1982), Marvin Brener, a hospital staff 
pharmacist and Orthodox Jew, asked his supervisor to arrange his shift 
so that he would not have to work on Saturday, his Sabbath, or on 
Jewish holidays, such as Rosh Hashanah and Yom Kippur. Though granting 
the request at first, the hospital eventually refused, arguing that 
accommodation of Mr. Brener's religious practice posed a ``morale 
problem'' because other pharmacists were complaining about this 
``preferential treatment.'' Brener--scheduled to work on a day that his 
faith forbade him to--was forced to resign. He sued, but lost. In its 
ruling, a federal court of appeals held that it is the employee's, 
rather than the employer's, duty to arrange job swaps with other 
employees to avoid conflict with religious observance.\5\ But an 
employer's inquiry is far more likely to be given serious consideration 
by fellow workers. Further, the employer is better situated to know 
which of the other employees is likely to be receptive to a request to 
adjust schedules. Conversely, once the employer appears indifferent to 
the request for accommodation, other employees may be less likely to 
cooperate. In short, placing the onus for arranging job swaps on an 
employee works to insulate an employer from fulfilling its obligation 
to avoid discrimination, while placing a discouraging--even 
debilitating--burden on the employee.
    Finally, in Ansonia Board of Education v. Philbrook, 479 U.S. 60 
(1986)--the only case besides Hardison in which the Supreme Court has 
addressed the religious accommodation provisions of Title VII--the High 
Court found that ``any reasonable accommodation by the employer is 
sufficient to meet the obligation to accommodate'' and that the 
employer could refuse alternatives that were less onerous to the 
employee, but still reasonable. But even as this holding affords the 
employer the discretion to choose the reasonable accommodation most 
appropriate from its perspective, two principles should apply--first, 
the accommodation should actually remove the conflict (which was the 
case in Philbrook but not, as has been noted above, in other cases), 
and, second, an accommodation should not treat a religious practice 
less favorably than other, secular practices that are accommodated.
The Workplace Religious Freedom Act
    The constrictive readings of section 701(j) discussed above are 
inconsistent with the principle that religious discrimination should be 
treated fully as seriously as any other form of discrimination. The 
civil rights of religious minorities should be protected by 
interpreting the religious accommodation provision of Title VII in a 
fashion consistent with other protections against discrimination to be 
found elsewhere in this nation's civil-rights laws. Since the problems 
in this area turn on judicial interpretation of legislation, rather 
than constitutional doctrine, they are susceptible to correction by the 
U.S. Congress. That is what the Workplace Religious Freedom Act is 
intended to do.
    Instead of the ``not more than de minimis'' standard, WRFA would 
define ``undue hardship'' as an ``an action requiring ``significant 
difficulty or expense'' and would require that, to be considered an 
undue hardship, the cost of accommodation must be quantified and 
considered in relation to the size of the employer. In this respect, it 
would resemble (although not be identical with) the definition of 
``undue hardship'' set forth in the Americans with Disabilities Act. 
The ADA presents, in fact, an apt analogy to the provisions of Section 
701(j). As it later did for Americans with disabilities, the U.S. 
Congress determined in enacting Section 701(j) that the special 
situation of religiously observant employees requires accommodation so 
that those employees would not be deprived of equal employment 
opportunities.
    Crucially, WRFA would require that to qualify as a reasonable 
accommodation an arrangement must actually remove the conflict. This 
would put to rest the notion that a collective bargaining agreement or 
any other neutral arrangement, or an ``attempt to accommodate,'' that 
fails to accommodate a religious practice might itself be viewed as a 
``reasonable accommodation.'' The accommodation might, of course, 
constitute an undue hardship, but a vitiated definition of reasonable 
accommodation should not be utilized to avoid engaging in undue 
hardship analysis.
    WRFA would also make clear that the employer has an affirmative and 
ongoing obligation to reasonably accommodate an employee's religious 
practice and observance. This provision does not in of itself alter the 
standard for what is a reasonable accommodation or an undue hardship. 
It does, however, require that all to whom section 701(j) applies bear 
the responsibility to make actual, palpable efforts to arrive at an 
accommodation.
    On the specific issue of collective bargaining arrangements, 
nothing in the bill purports to override section 703(h) of Title VII. 
It would, however, encourage religiously observant employees and their 
employers, and a collective bargaining representative where applicable, 
to seek amicable arrangements within the context of an existing 
seniority system, perhaps through voluntary shift swaps or 
modifications of work hours.
    WRFA also explicitly puts to rest any suggestion in the Philbrook 
case that it is appropriate to forbid the use of personal leave time 
for religious purposes when that leave is available for other, secular 
purposes.
    Finally, in order to address concerns raised by business interests, 
WRFA--tracking an element of the Americans with Disabilities Act--would 
add to existing religious accommodation law, with certain clarifying 
language, a provision that an employer need not provide a reasonable 
accommodation if, as a result of the accommodation, the employee will 
not be able to fulfill the ``essential functions'' of the job. Once it 
is shown that an employee cannot fulfill these functions, the employer 
is under no obligation to show that he or she would incur an undue 
hardship were a reasonable accommodation to be afforded.
Concerns about Impact on Business
    As was just referenced, concerns have been raised that WRFA will 
impose an unmanageable burden on employers. But the concept of 
religious accommodation is not, as we have seen, a new one under 
federal civil rights law. And, as under the current interpretation of 
Title VII, WRFA does not give employees a ``blank check'' to demand any 
accommodation in the name of religion and receive it. Rather, it 
restores the protection Congress intended for religious employees in 
enacting the 1972 amendment by adjusting the applicable balancing test 
in a fashion that still gives substantial regard to the legitimate 
needs of business standard even as it somewhat levels the field for an 
employee in need of accommodation.
    In this regard, it is well to note that, as an amendment to Title 
VII and therefore subject to its restrictions, WRFA does not apply to 
employers of less than 15 full time employees. Moreover, the factors 
that it sets forth for determining what is an ``undue hardship'' are 
designed to make the determination context specific so that a 
relatively small employer--of, say, 100 employees, might well not have 
to provide an accommodation where a larger employer of 1,000 would have 
to do so.
    It is commonly argued that fakers will seek illegitimate 
accommodations based on fraudulent beliefs. But the fact is that courts 
have for decades engaged in assessing the sincerity of asserted 
religious beliefs. Indeed, under the Supreme Court's 1965 decision in 
United States v. Seeger, 380 U.S. 163 (1965), the threshold question of 
sincerity as to religious belief must be resolved as a question of 
fact. In practical terms, the problem of insincerity in the realm of 
religious accommodation in the workplace is particularly small. People 
who do not have a genuine and sincere reason to ask for an 
accommodation are simply unlikely to risk employer displeasure and 
social stigma by doing so. In addition, religious accommodation cases 
are almost always brought after a worker has been fired. Given the 
economic disincentive to bring such suits, it would be odd indeed for 
an individual to be fired and then spend financial resources to 
vindicate a religious belief she doesn't sincerely hold.
    Historical precedent indicates that bogus claims are much more 
prominent in the minds of WRFA opponents than in reality. New York 
State has had a holy-day accommodation law for many years, yet there is 
no record of people bringing cases for failure to honor their ``Church 
of the Super Bowl'' or ``Mosque of the Long Weekend.'' For that matter, 
there has been no epidemic of these fanciful claims under existing 
federal religious accommodation law.
Concerns about Impact on Third Parties
    Another set of concerns has been raised that implementation of WRFA 
will lead to material adverse impacts on third parties. These concerns 
arise primarily in the context of two types of hypothetical 
situations--that WRFA will be used to protect those who would cite 
religious beliefs as a justification for harassing gays in the 
workplace, and that WRFA will be used to limit access to reproductive 
healthcare. These concerns are based on an unreasonable and untenable 
reading of the proposed law under which claims for accommodations that 
would have material adverse impact on third parties that have, until 
now, lost virtually without exception, might have different results 
should WRFA be passed. As an organization that supports both 
reproductive rights and measures to protect against discrimination on 
the basis of sexual orientation, the American Jewish Committee would 
not be supporting WRFA if we thought that it would lead to such baleful 
results.
    A central component of WRFA, as is the case under current 
accommodation law, is its balancing test, albeit with a modification of 
the operative definitions of ``reasonable accommodation'' and ``undue 
hardship.'' Nothing in that change in definition will alter the fact 
that courts are quick to recognize that workplace harassment imposes a 
significant hardship on employers in various ways: Permitting 
harassment to proceed unchecked opens the employer up to lawsuits based 
on the employer maintaining a hostile work environment; the loss of 
productivity and collegiality caused by attacks on colleagues 
constitutes a significant burden; and the cost of recruiting and hiring 
new employees to replace those who leave due to harassment also meets 
the significant burden test.
    Thus, in Chalmers v. Tulon Co. of Richmond, 101 F.3d 1012 (4th Cir. 
1996), cert. denied, 522 U.S. 813 (1997), an appellate court dismissed 
the religious accommodation claim brought by an employer who was fired 
for writing accusatory letters to co-employees. The court reasoned, 
``where an employee contends that she has a religious need to impose 
personally and directly on fellow employees, invading their privacy and 
criticizing their personal lives, the employer is placed between a rock 
and a hard place. If [the employer] had the power to authorize [the 
plaintiff] to write the letters, the company would subject itself to 
possible suits from [other employees] claiming that [the plaintiff's] 
conduct violated their religious freedoms or constituted religious 
harassment.'' The court considered the proposition that the plaintiff's 
conduct constituted an undue hardship to be self-evident, and did not 
find it necessary to analyze the claim in terms of the de minimis 
standard.
    Similarly, in Peterson v. Hewlett-Packard, 358 F.3d 599 (9th Cir. 
2004), a court of appeals unequivocally decided that Title VII provided 
no protection from termination for a Christian employee who was fired 
when he refuse to remove from his cubicle a quote from the Bible 
condemning homosexuality. Both the lower court and the appeals court 
had no problem at all finding against the plaintiff on the Title VII 
claim he brought for failure to provide a religious accommodation. The 
Ninth Circuit did not discuss the standard the employer had to meet, 
but rather focused on the burden on fellow employees, finding, in 
effect, that religious beliefs cannot insulate actions that demean or 
degrade other employees. There is nothing in WRFA that would change 
this analysis. Moreover, it is significant that there is a paucity of 
Title VII religious accommodation case involving the issue of 
harassment of gays in the workplace.
    Concerns have also been raised that WRFA would permit an emergency-
room nurse to walk away from a woman in need of an emergency abortion 
on the grounds that the nurse's participation in the procedure would 
violate his or her religious precepts--as if any court hearing a case 
brought by the nurse against an employer for unfair dismissal would 
likely find that it is not a significant burden on the hospital when 
its employees refuse to treat patients in need of emergent care. If 
employees leaving patients suffering isn't a significant burden on a 
hospital, one is forced to ask, what is? If facing significant 
malpractice liability from the patient for substandard care isn't a 
significant burden, what is? If risking the hospital's accreditation 
isn't a significant burden, what would be? \6\
    The same analysis plays out in the context of the claim that WRFA 
would permit policemen to refuse to guard abortion clinics. If a 
policeman had a religious objection to guarding an abortion clinic, he 
could, under WRFA, ask to be reassigned. His employer would be required 
to facilitate such a reassignment, but only if by so doing it did not 
incur a significant burden. Sometimes accommodation would simply not be 
practicable. Does this mean that the abortion clinic would remain 
unguarded? No. In such circumstances the policeman would have to accept 
his assignment or accept the consequences of disobeying an order. 
Nothing in WRFA comes close to leaving abortion clinics exposed.
    And, finally, it is claimed that WRFA would somehow empower 
pharmaceutical employees to refuse to fill prescriptions for birth 
control medication or for emergency contraception, even at the cost of 
the patient's prescription not being filled at all. This concern was 
raised in the context of a case in which a CVS pharmaceutical employee 
refused to fill a prescription for birth control pills because the 
pharmacist did not ``believe'' in birth control. After some initial 
confusion, CVS confirmed that the refusal was not in line with company 
policy, which requires that a pharmacist who refuses to dispense 
medication based on personal ideology must make sure that the patient's 
prescription is filled anyway, either by another pharmacist at that 
location or by another pharmacy in the area. In a similar vein, an 
Eckerd pharmacy fired a pharmacist who refused to fill a rape victim's 
prescription for emergency contraception.
    As with existing Title VII provisions, WRFA provides a floor in 
terms of the extent to which an employer must accommodate an employee's 
religious practice, not a ceiling. Thus, WRFA has no role to play as to 
whether a pharmacy will require--as CVS and Eckerd do--that 
prescriptions be filled, regardless of an employee's personal beliefs. 
But, crucially, as in the context of abortion services, once a pharmacy 
does have such a policy, a fair reading of the ``undue hardship'' 
standard under WRFA would lead to the conclusion that the firing of an 
employee for not filling the prescription would be sustained if no 
reasonable accommodation such as having another employee fill the 
prescription in a timely fashion were available. Given the implications 
for the pharmacy of having a customer whose prescription is not filled, 
the failure to fill the prescription would constitute a palpable 
significant difficulty or expense.
    In sum, the courts clearly take impact on third parties very 
seriously as an element of undue hardship and, again and again, their 
analysis does not turn on the de minimis standard. Indeed, the cases 
cited by opponents of WRFA often turn on aspects that have nothing to 
do with the ``undue hardship'' standard at all.\7\
    Moreover, the assertion that baleful results will flow from 
strengthening federal protections against religious discrimination are 
also without basis in the experience of prior efforts to enhance 
antidiscrimination law. In 2002, New York State amended the religious 
accommodation provisions of its Human Rights Law, found at New York 
Executive Law Section 296(10), in a fashion similar in material 
respects to WRFA.\8\ Earlier, in 1997, President Bill Clinton adopted 
guidelines on the treatment of religion in the federal workplace that 
functionally strengthened the religious accommodation standards of that 
workplace.
    In a state as large and diverse as New York, and given the speed 
with which information travels in this Age of the Internet, we would 
expect to have heard if the predicted onslaught of such claims were 
occurring, much less that these claims were prevailing. But there is no 
evidence that enactment of the 2002 amendments has led to the parade of 
horribles foretold by some critics of WRFA. As Eliot Spitzer, now 
Governor and then Attorney General of New York, stated in an op-ed 
appearing in the Forward on June 25, 2004, ``New York's law has not 
resulted in the infringement of the rights of others, or in the 
additional litigation that the ACLU [a WRFA critic] predicts will occur 
if WRFA is enacted. Nor has it been burdensome on business. Rather, it 
strikes the correct balance between accommodating individual liberty 
and the needs of businesses and the delivery of services. So does 
WRFA.''
    Thus, the suggestion that Congress should not pass WRFA because it 
will open the door to harassment and denial of essential medical 
treatment places a fanciful swatting at phantoms over the very real 
need to remedy the harm faced by religiously observant employees every 
day.
Why the ``Targeted'' Approach Will Not Work
    It has been suggested that the way to deal with these concerns is 
to resort to a so-called ``targeted'' approach, under which Congress 
would single out particular religious practices--dress, grooming, holy 
days--for protection under the WRFA standard. But the ``targeted'' 
approach embraces a troubling notion--that certain religious practices 
are simply not worthy of even a day in court to establish whether 
accommodation of those practices can be afforded without significant 
difficulty or expense for the employer or third parties. Again, the 
AJC--joined by many of the organizations supporting WRFA--is committed 
to combating discrimination on the basis of sexual orientation and to 
reproductive rights. But we are also committed to a fundamental premise 
of our Constitution and our society, that it is not up to the 
government to prescribe orthodoxies of belief or practice, and that the 
religious beliefs and practices of those with whom we disagree on these 
(and other) fundamental matters should be accommodated if this can be 
done without harm to others.
    Moreover, under the ``targeted'' approach as many as 25% of 
accommodation claims would be consigned by a Faustian bargain to the 
old, inadequate standard--all in order to ensure that a subset of those 
claims with little chance of success are eliminated from a miniscule 
improved chance of success.
    Claims that would be eliminated from coverage a targeted 
application of the WRFA standard include:
     Jehovah's Witness employees who request to opt out of 
raising the flag and pledging allegiance at work;
     A Methodist attorney who requests accommodation not to 
work on tobacco litigation;
     A Quaker (Society of Friends) employee who requests to be 
transferred to a division that does not work on armaments;
     An Orthodox Jewish woman who requests permission not to 
shake the hands of male customers;
     A Hindu employee who requests permission not to greet 
guests with the phrase ``Merry Christmas;''
     A Christian employee who requests to be assigned to work 
that does not involve embryonic research;
     A Muslim hospital employee who requests to be exempted 
from duty in which she would be present when a member of the opposite 
sex is unclothed.
    While these examples provide an overview of some of the types of 
cases that would be omitted from coverage by WRFA were the targeted 
approach adopted, it is by no means designed to give the totality of 
cases. Indeed, the variety of religious beliefs is one of the factors 
that make our nation such a fascinating place to live. In addition, 
there are numerous relatively new religious groups in the United 
States. Many of these groups are relatively small and some are 
primarily made up of immigrants. As a result, they often are unaware of 
their rights under current law, and frequently do not have the 
resources to vindicate their rights in the courts. Thus, the reported 
cases almost certainly undercount the claims from these groups. To 
agree to a targeted bill is to agree to a lower protection for these 
groups without their having any input in the decision.\9\
    WRFA provides that when it can be shown that accommodating a person 
of faith in the workplace proves significantly difficult or expensive, 
the accommodation need not be provided. Whether that difficulty arises 
due to disharmony caused by a religious employee harassing another 
employee or refusing to provide medical care when no reasonable 
accommodation can be made, or because accommodation of the religious 
employee would result in disfavoring fellow employees or other third 
parties in a host of other ways, the balancing test provides assurance 
that religious employees will not trample the rights of others in the 
workplace.
Constitutional Issues
    Amendment of the law so as to provide a reading of Section 701(j) 
that affords meaningful protections for religiously observant employees 
is consistent with the Establishment Clause's requirement that 
government action not favor one religion over another, or religion over 
non-religion.
    It has been suggested by some commentators that the reading of 
``undue hardship'' to mean not more than de minimis difficulty or 
expense was necessary to avoid a reading of the accommodation provision 
that would have caused it to run afoul of the Establishment Clause. 
Although not explicitly invoking the Establishment Clause, Justice 
White--writing for the Court in Hardison--asserted that any 
construction of Title VII that was more protective of religious 
practice would mean that employees would be treated not on a 
nondiscriminatory basis but unequally on the basis of their religion. 
``* * * [T]he privilege of having Saturdays off would be allocated 
according to religious belief,'' he said in writing for the Court, 
``Title VII does not contemplate such unequal treatment.''
    But Justice Marshall's dissent in Hardison, joined by Justice 
Brennan, saw no constitutional problem in requiring employers ``to 
grant privileges to religious observers as part of the accommodation 
process.'' Justice Marshall went on, ``If the State does not establish 
religion over nonreligion by excusing religious practitioners from 
obligations owed the State, I do not see how the State can be said to 
establish religion by requiring employers to do the same with respect 
to obligations owed the employer.'' 432 U.S. at 91. He added in a 
footnote:
    The purpose and primary effect of requiring such exemptions is the 
wholly secular one of securing equal economic opportunity to members of 
minority religions. * * * And the mere fact that the law sometimes 
requires special treatment of religious practitioners does not present 
the dangers of ``sponsorship, financial support, and active involvement 
of the sovereign in religious activity,'' against which the 
Establishment Clause is principally aimed. 432 U.S. at 90-91, fn. 4. As 
we all know, Justices Marshall and Brennan were both resolute 
supporters of a strict reading of the Establishment Clause. Thus, it is 
particularly compelling that neither believed that the Constitution 
required a weak reading of section 701(j).
    The case of Estate of Thornton v. Caldor, Inc., 472 U.S. 703 
(1985), is distinguishable. In that case the Supreme Court struck down 
by a vote of 8-1, as a violation of the Establishment Clause, a 
Connecticut statute that gave employees the absolute right not to work 
on their respective Sabbaths. Writing for the Court, Chief Justice 
Burger said the state law imposed an excessive burden on employers, as 
well as on non-religious employees who also had ``strong and 
legitimate'' reasons for wanting to avoid having to work on the 
weekend. 472 U.S. at 710, fn.9. The opinion of the Chief Justice did 
not, however, address the question of the constitutionality of a less 
absolute approach to the issue of employee Sabbath observance.
    In a concurring opinion, joined by Justice Marshall, Justice 
O'Connor agreed with the Court's decision, but stated also that ``the 
Connecticut Sabbath law has an impermissible effect because it conveys 
a message of endorsement of Sabbath observance.'' She went on to note 
that ``the statute singles out Sabbath observers for special and, as 
the Court concludes, absolute protection without according similar 
accommodation to ethical and religious beliefs and practices of other 
private employees.'' 472 U.S. at 711 (O'Connor, J., concurring). Hence, 
in her view, the statute advanced religion in violation of the 
Establishment Clause. Importantly, Justice O'Connor distinguished the 
Connecticut statute from the religious accommodation provision of Title 
VII:
    * * * a statute outlawing employment discrimination based on race, 
color, religion, sex, or national origin has the valid secular purpose 
of assuring employment opportunity to all groups in our pluralistic 
society. * * * Since Title VII calls for reasonable rather than 
absolute accommodation and extends that requirement to all religious 
beliefs and practices rather than protecting only * * * Sabbath 
observance, I believe that an objective observer would perceive it as 
an anti-discrimination law rather than an endorsement of religion or a 
particular religious practice. 472 U.S. at 712.
    Both prior to and subsequent to Thornton, a number of federal 
appellate courts have held the reasonable accommodation provisions of 
section 701(j) to be constitutional, reasoning that, under the 
tripartite analysis of Lemon v. Kurtzman, 403 U.S. 602 (1971), the 
requirement had a secular purpose (the elimination of religious 
workplace discrimination); a primary effect that neither advances nor 
prohibits religion; and does not lead to excessive government 
entanglement with religion. See, e.g., EEOC v. Ithaca Industries, Inc., 
849 F. 2d 116 (4th Cir.), cert. denied, 488 U.S. 924 (1988); McDaniel 
v. Essex International, Inc., 696 F.2d 34 (6th Cir. 1982).
    Left unaddressed by the courts, except for the views expressed by 
Justices Marshall and Brennan in their dissent in Hardison, is whether 
a standard more protective of religious observance than de minimis but 
not absolute, as was the Connecticut statute struck down in Thornton, 
would survive Establishment Clause scrutiny. In our view, it would. 
Turning to the Lemon analysis,\10\ easing of the undue hardship 
standard (and, indeed, the other aspects of the bill), so as to afford 
greater protection for employees serves the secular purpose of 
combating discrimination. Moreover, the parallels between WRFA and the 
Americans with Disabilities Act--albeit their provisions are not 
identical--demonstrate that the Congress will not be granting a 
religion a kind of protection not available to secular interests. The 
primary effect prong appears satisfied by the balancing of interests 
and non-absolute nature of the accommodation reflected in the bill. 
Finally, the excessive entanglement prong--subsumed in the primary 
effects prong by Agostini v. Felton, 521 U.S. 203 (1996)--has been 
invoked by the courts only in cases involving government monitoring of 
religious institutions that receive public funds.
    An invalidation of WRFA on Establishment Clause grounds would be 
grounded in paradox; it would be to say that an assuredly valid 
government purpose of combating religious discrimination may be 
accomplished only by a reading of section 701(j) so circumscribed as to 
fail to afford religiously observant employees a genuine modicum of 
protection. Surely, that cannot be the constitutionally mandated 
result.
    The Supreme Court's rulings in United States v. Lopez, 514 U.S. 549 
(1995), and in City of Boerne v. Flores, 521 U.S. 507 (1997), among 
other decisions reflecting a change of the Court's approach to 
legislation enacted in reliance upon the Commerce Clause and section 5 
of the Fourteenth Amendment, respectively, give rise to an 
understandable concern as to the prospects for WRFA should it be 
enacted.
    Turning to the Boerne issue first, the Court went to significant 
lengths in that case to distinguish its decision striking down the 
Religious Freedom Restoration Act as applied to the states from earlier 
cases upholding the authority of the Congress under section 5 to enact 
the voting rights laws. To the extent the Civil Rights Act of 1964 is 
grounded in section 5, WRFA is simply a clarification of terms from 
Title VII of the 1964 act, as amended. In any event, Boerne relates to 
the question of whether WRFA will be enforceable against state and 
local governments. However, that issue may be resolved--and important 
as it is to afford stronger protections against religious 
discrimination to both public and private sector employees--even a WRFA 
whose reach is limited by an expansion of Boerne would still serve a 
crucial purpose.
    In addition, and crucially, the 1964 Civil Rights Act is founded in 
the Commerce Clause. Lopez notwithstanding, Commerce Clause legislation 
remains valid so long as Congress has a rational basis for concluding 
that the regulated activity ``substantially affects'' interstate 
commerce. United States v. Lopez, 514 U.S. at 558-59. The prohibition 
on invidious discrimination in connection with employment is the sine 
qua non of legislation with respect to an activity that ``substantially 
affects'' interstate commerce. See Lopez, 514 U.S. at 559, citing Heart 
of Atlanta Motel, Inc. v. United States, 379 U.S. 241 (1964) (upholding 
Title II of the Civil Rights Act of 1964 and, by implication, the rest 
of the Act) as an example of ``congressional Acts regulating intrastate 
economic activity where we have concluded that the activity 
substantially affected interstate commerce.''
Conclusion
    Enactment of the Workplace Religious Freedom Act will constitute an 
important step towards ensuring that all members of society, whatever 
their religious beliefs and practices, will be protected from an 
invidious form of discrimination. The refusal of an employer, absent 
undue hardship, to provide reasonable accommodation of a religious 
practice should be seen as--and was intended by Congress in 1972 to be 
treated as--a form of religious discrimination. And religious 
discrimination should be treated fully as seriously as any other form 
of discrimination that stands between Americans and equal employment 
opportunities.
    In assuring that employers have a meaningful obligation to 
reasonably accommodate their employees' religious practices, WRFA will 
restore to Title VII's religious-accommodation provision the weight 
that Congress originally intended. And, although necessarily framed as 
a strengthening of the legal protection to be afforded religiously 
observant employees, enactment of WRFA will, it is hoped, have a 
benefit that is not strictly legal. It may cause employees and 
employers to start talking to each other where they have not--employers 
may not think they now have to address issues of accommodation because 
they believe the law is on their side, and some employees may simply 
think they have no recourse. The true mark of this bill's success, when 
it becomes law, will be if there is less, not more, litigation over 
accommodation of religious practice.
    We come to this hearing some two months before the Jewish holiday 
of Pesach (Passover). During that holiday, as at other times of the 
year, there are a number of days on which work is religiously 
proscribed. Too often a season that should be one of joy becomes, for 
Jews who observe the proscription on work, a period of anxiety and, 
sometimes, blighted careers as they face the possibility of losing 
their livelihood for following the dictates of their faith.
    Nearly thirty years ago, Justice Thurgood Marshall concluded his 
dissent in Hardison by saying:
    The ultimate tragedy [of this decision] is that despite Congress' 
best efforts, one of this Nation's pillars of strength--our hospitality 
to religious diversity--has been seriously eroded. All Americans will 
be a little poorer until today's decision is erased. 432 U.S. at 97. 
Perhaps we will come to look back on the hearing held today as the 
harbinger of the realization of Justice Marshall's hope--that the civil 
rights laws of this great nation will give due regard to the religious 
diversity that is one of its marks of pride.
                                endnotes
    \1\ Section 701(j) of Title VII provides, with respect to the 
definition of ``religion'' as follows:
    The term ``religion'' includes all aspects of religious observance 
and practice, as well, as belief, unless an employer demonstrates that 
he is unable to reasonably accommodate to an employee's or prospective 
employee's religious practice without undue hardship on the conduct of 
the employer's business.
    This language, in essence, codifies a 1967 Equal Employment 
Opportunity Commission guideline that provided a definition of 
``religion'' for purposes of enforcement of the law prohibiting 
employment discrimination on the basis of religion. In enacting this 
provision, Congress modified the guideline so as to shift from the 
employee to the employer the burden of proving that the accommodation 
sought is not reasonable.
    \2\ E.g., Beadle v. City of Tampa, 42 F.3d 633 (11th Cir. 1995), 
cert. denied, 515 U.S. 1152, and Beadle v. Hillsborough County 
Sheriff's Dep't, 29 F.3d 589 (11th Cir. 1995), cert. denied, 515 U.S. 
1128 (1995).
    \3\ E.g., United States v. Bd. of Education, 911 F.2d 882 (3d Cir. 
1990).
    \4\ Justice Marshall's discussion of section 701(j)'s legislative 
history is worthy of note. Section 701(j) was introduced by Senator 
Jennings Randolph explicitly to rebut cases suggesting that ``to excuse 
religious observers from neutral work rules would `discriminate against 
* * * other employees' and `constitute unequal administration of the 
collective-bargaining agreement.'[citing Dewey v. Reynolds Metals Co., 
429 F.2d 324 (6th Cir. 1970), aff'd by an equally divided Court, 402 
U.S. 689 (1971)] * * * The primary purpose of the amendment, [Senator 
Randolph] explained, was to protect Saturday Sabbatarians like himself 
from employers who refuse `to hire or continue in employment employees 
whose religious practices rigidly require them to abstain from work in 
the nature of hire on particular days.' [citing 118 Cong. Rec. 705 
(1972)] His amendment was unanimously approved by the Senate on a roll-
call vote [citing 118 Cong. Rec. 731 (1972)], and was accepted by the 
Conference Committee [cites omitted], whose report was approved by both 
Houses. 118 Cong. Rec. 7169, 7573 (1972). Yet the Court today, in 
rejecting any accommodation that involves preferential treatment, 
follows the Dewey decision in direct contravention of congressional 
intent.'' 432 U.S. at 89.
    \5\ The court also noted, in yet another example of the courts' 
restrictive reading of the undue burden standard, that the hospital was 
not obligated to accommodate Brener's religious observance if that 
would lead to ``disruption of work routines and a lessening of morale 
among other pharmacists.''
    \6\ See, in this regard, Shelton v. University of Medicine & 
Dentistry of New Jersey, 223 F.3d 220 (3d Cir. 2000) (opinion by Judge 
Scirica with Judges Alito and Aldisert concurring). While the nurse's 
claim was dismissed in that case for her failure to accept the 
hospital's proffer of a reasonable accommodation, the federal court of 
appeals asserted, in the context of a discussion of ``undue burden,'' 
that ``we believe public trust and confidence requires that a public 
hospital's health care practitioners--with professional ethical 
obligations to care for the sick and the injured--will provide 
treatment in time of emergency.'' 223 F.3d at 228. Nothing in this 
statement suggests that the court's analysis would be different in 
light of the change contemplated by WRFA.
    \7\ See, as to both propositions, Anderson v. U.S.F. Logistics 
(IMC), Inc., 274 F.3d 470 (7th Cir. 2001) (case turns on employer's 
having offered a reasonable accommodation, not undue hardship issue); 
Parrott v. District of Columbia, 1991 WL 126020, 58 Empl. Prac. Dec. P 
41,369 (D. D.C. 1991) (strongly worded discussion of the undue hardship 
that the requested accommodation would pose for employer suggests that 
WRFA standard would not have made a difference in result); Bruff v. N. 
Miss. Health Services, Inc., 244 F.3d 495 (5th Cir.) (similarly), cert. 
denied, 534 U.S. 952 (2001); Wilson v. U.S. West Communications, 58 
F.3d 1337 (8th Cir. 1995) (case turns on employee's failure to accept a 
reasonable accommodation, not undue burden); Johnson v. Halls 
Merchandising, Inc., 1989 WL 23201 (W.D. Mo. 1989) (plaintiff's claim 
dismissed because the defendant attempted to reasonably accommodate 
plaintiff's religious practices but ``plaintiff did not make any effort 
to cooperate with her employer or to accommodate her beliefs to the 
legitimate and reasonable interests of her employer, i.e., to operate a 
retail business so as not to offend the religious beliefs or non 
beliefs of its customers'').
    \8\ New York's amended religious accommodation law is, to be sure, 
not identical with H.R.1431. Nevertheless, this New York law 
incorporates the most crucial aspect of H.R.1431--a heightened standard 
for determining whether a proposed religious accommodation will impose 
an ``undue hardship.''
    The revised New York law incorporates two significant new elements. 
Firstly, subsection (a) of Section 296(10), as amended, explicitly 
extends the obligation of an employer to provide a reasonable 
accommodation of an employee's religious practice to any ``sincerely 
held practice of his or her religion;'' the prior law had referenced 
only holy day observance. Secondly, subsection (a), as amended, goes on 
to provide that it is a discriminatory practice for an employer to 
require an employee or prospective employee ``to violate or forego a 
sincerely held practice of his or her religion * * * unless, after 
engaging in a bona fide effort, the employer demonstrates that it is 
unable to reasonably accommodate the employee's or prospective 
employee's sincerely held religious observance or practice without 
undue hardship on the conduct of the employer's business.''
    ``Undue hardship'' is defined by subsection (c)(1) to mean ``an 
accommodation requiring significant expense or difficulty (including a 
significant interference with the safe or efficient operation of the 
workplace or a violation of a bona fide seniority system)''--a 
definition that is similar to, although not identical with, the 
definition of ``undue hardship'' in WRFA. While WRFA does not include 
the parenthetical, the provision that an employer shall not be 
obligated to accede to ``a violation of a bona fide seniority system'' 
is consistent with the provisions of Section 703(h) of Title VII, which 
will continue to be applicable to federal religious accommodation cases 
if WRFA is adopted, as it is now. Further, the clause regarding ``safe 
or efficient operation of the workplace'' simply expands on the meaning 
of ``significant difficulty or expense.'' Subsection (c)(1) goes on to 
list a number of factors to be considered in determining whether the 
accommodation constitutes ``an undue economic hardship,'' a list which 
is, again, similar, but not identical, to the nonexclusive list to be 
found in WRFA.
    \9\ This carving up of religious claims into two different 
categories is both philosophically troubling and possibly 
constitutionally problematic, as it opens WRFA up to claims that it 
violates the Establishment Clause by privileging some religious beliefs 
over others. See Estate of Thornton v. Calder, Inc., 472 US 703 (1985).
    \10\ Although the continued vitality of the Lemon test is in doubt, 
it is useful to apply that analysis in this context because it is a 
restrictive reading of what government action is allowed pursuant to 
the Establishment Clause.
                                 ______
                                 
    Chairman Andrews. Thank you very, very much.
    Mr. Gray, welcome to the subcommittee.
    Mr. Gray. Thank you.
    Good afternoon, Chairman Andrews, Ranking Member Kline, 
distinguished members of the committee. I wanted to thank you 
for the opportunity to speak to you today on this very 
important piece of legislation, as well as appreciate Chairman 
Andrews' initial thoughts of the careful deliberations that the 
committee intends to do on this amendment or potential 
amendment to Title VII of the Civil Rights Act of 1964.
    As a former political science major and avid follower of 
the legislative process, I also just want to tell you what an 
honor it is to be here and to participate, albeit just a small 
part, in the legislative process.
    Chairman Andrews. There are no small parts, only small 
witnesses, which you are not one, I am sure. [Laughter.]

   STATEMENT OF MICHAEL GRAY, PARTNER, LABOR AND EMPLOYMENT 
                      PRACTICE, JONES DAY

    Mr. Gray. Well, I appreciate it, Chairman.
    I am here on behalf of HR Policy Association, an 
association of chief human resource executives at 250 of the 
largest employers here in the United States. Our members have 
more than 12 million employees here in the United States and 
another 6 million abroad.
    I am a partner at Jones Day, and I spend my days working 
with corporations--small, medium, and large--in trying to deal 
with the difficult regulations that confront them in the 
workplace.
    We are here today to look at the act, and I am here to sort 
of bring some of the practicalities that corporations in the 
United States see on a day-to-day basis with respect to 
religious discrimination, religious accommodation, and the need 
for amendment to this very historic Civil Rights Act of 1964.
    What we have seen in practice is that, contrary to what we 
have heard from some critics, Title VII actually is providing 
appropriate accommodation to employees and is in no need of 
repair.
    The act before us today, WRFA, the Workplace Religious 
Freedom Act, really goes too far in trying to remedy problems, 
and when we take a look at the problems that are cited, what we 
find is that there are not the sort of widespread problems in 
the workplace that are not being remedied by avenues already 
provided under the Civil Rights Act.
    For example, what we have seen in the workplace is two 
large sets of proposed accommodations. One falls into the 
category of dress and appearance, as well as days off. That is 
sort of the first category, something that employers tend to 
see each day.
    The Tannenbaum study, which I cite, as well as a number of 
other points, in the written testimony talks about that nearly 
80 percent of the responding corporations said that they have 
some type of days off provided, whether religious or not, for 
their employees. So what we are seeing is that employers see 
the issue and are currently addressing it.
    Of course--and there are examples cited in everybody's 
testimony--there are times when corporations may not be doing 
the right thing, and there are adequate avenues for redress. 
One, employees can go to the EEOC. There is private litigation. 
Cases are cited in the testimonies of everybody sitting here 
today. And, also, the EEOC has been an advocate on behalf of 
potentially aggrieved employees.
    We have also seen quite recently, in the cases brought by 
the EEOC, success where, if there is a situation where 
corporations are not providing the rights provided under Title 
VII, the courts are stepping in and providing redress, and we 
have actually had a couple of recent decisions on that point.
    The act, I think, is a combination of both the rifle shot 
as well as the shotgun approach, and it is too difficult in our 
short time period to really get to all the issues, Mr. 
Chairman, but I do think the testimony lays out a number of the 
issues, and I just wanted to cite a couple more in my closing 
moments.
    In trying to take the framework from the Americans with 
Disabilities Act and apply that to your religious context, 
there is not sort of a one-to-one correspondence. For example, 
the test set forth in WRFA would like you to sort of put an 
easy number on the cost of a potential accommodation.
    Now that may be much easier. In fact, we have seen that 
both in cases and, frankly, my clients have seen that where if 
someone requires a new keyboard or a new backrest or someone to 
assist them, they are very quantifiable, or in the words of 
WRFA, identifiable.
    But if you take that same context and you then apply it to 
the religious accommodation, it is much more difficult. All the 
recent examples, many of which are cited in the testimony, 
where people's acts affect others in the workplace----
    Chairman Andrews. Mr. Gray, if we could just ask you to 
summarize.
    Mr. Gray. Absolutely. The act would call for employers to 
select one group over another within it. You do not have to go 
outside the workplace. So what our membership is asking is that 
you take a deliberate look at this and see whether or not, in 
fact, the current system is broke before we go and amend this 
very historic Civil Rights Act.
    [The statement of Mr. Gray follows:]
    
    
    
                                ------                                

    Chairman Andrews. Thank you very much.
    Ms. Al-Suwaij, welcome to the committee.

  STATEMENT OF ZAINAB AL-SUWAIJ, EXECUTIVE DIRECTOR, AMERICAN 
                        ISLAMIC CONGRESS

    Ms. Al-Suwaij. Thank you very much.
    Mr. Chairman and members of the subcommittee, thank you 
very much for inviting me to testify to you today on the very 
important topic. As someone who is an American citizen by 
choice, not by birth, it is a special honor to be invited to 
speak before you today.
    I was drawn to become an American citizen because of our 
country's sincere and unique commitment to religious freedom 
and individual rights. I am here today to share with you my 
perspective on respecting these rights in workplaces across the 
country.
    I appear before you as a Muslim-American who experienced 
discrimination in workplace, as well as in my capacity as an 
executive director of the American Islamic Congress, a civil 
rights organization promoting tolerance and exchange of ideas 
among Muslims and between other people.
    As a native of Iraq, I grow up not experiencing individual 
liberties. Instead, my childhood was spent under a repressive 
dictatorship, and the environment that I grow up with in the 
classrooms that simply a student can disappear because they are 
discussing political subjects in school. Add to that the hate 
messages that the teachers always mentioned in the classrooms.
    I grow up wearing my head scarf, or we call it in Arabic a 
hijab. It may seem hard to believe, but in the 1980s, Basra in 
Iraq was largely secular city, and I was only student in my 
whole school that is wearing the head scarf, because of my 
family tradition as well as it was something that I decided to 
do when I was young. I was always criticized by my teachers 
because of that, but I stayed true to my beliefs.
    In 1991, I joined the uprising against Saddam Hussein's 
government as well as I was one of the first women who would be 
there in the industry to overthrow Saddam and his government. 
Unfortunately, this uprising failed while we are waiting for 
the American help and it did not come.
    I experienced a real freedom when I moved to the United 
States in 1992. For the first time, I could be who I am and I 
could say what I want and comfortable in my own identity and 
just like a dream come true.
    Of course, life is never so simple. I remember going for a 
job interview many years ago. The woman who was interviewing me 
simply was not comfortable with me wearing a head scarf, and at 
the beginning, she asked me if I wear my head scarf only at 
night or I wear it during the day. I told her, ``Well, I wear 
it when I am in public.'' At that point, the interview ended.
    Later on, I worked at Interfaith Refugee Ministry as a 
refugee resettlement officer, and that was part of the 
Episcopal Social Service. Many of my clients fled their 
countries because of persecution, whether through religious 
persecution or politics, and one of my clients applying for a 
job, and the same thing happened to her. Basically, the 
employer asked her to put her head scarf in a way that is very 
comfortable for his customers when they come and see her.
    At the same time, I was representing another client of 
mine, and he asked his employer for a break for 5 minutes to 
have a midday prayer, and his employer denied that right for 
him. At the same time, it was OK for people to go and smoke 
cigarettes every hour outside the building. So I did my best to 
help these people, but, unfortunately, I was not successful.
    After the terrible attack of 9/11, I decided to take an 
action. The terror I thought that I had left behind is 
following me here to my country that I love and my family.
    With a group of concerned Muslims, I co-founded the 
American Islamic Congress. We promote nonreligious civic 
initiatives, which challenge increasingly the negative 
persecution of Muslims by advocating responsible leadership and 
two-way interfaith understanding.
    As a Muslim-American, I feel and I strongly understand 
there is the freedom that I enjoy in this country, and I would 
like many other people around the world to enjoy the same 
rights. To be specific, Muslim-American women who choose to 
wear hijab have the right to work with their head scarf on and 
should not fear persecution from their employers.
    Muslim-American workers who choose to pray five times a day 
have the right to conduct prayers during work hours. Muslim-
Americans who choose have the right to abstain from handling 
alcohol or pork at work. And all of these personal freedoms do 
not need to disturb American workplaces and should be able to 
be integrated into a decent way that respects workers of all 
backgrounds.
    As someone who grow up under hard repression and religious 
intolerance, I recognize how precious American freedoms are. As 
someone who had witnessed some examples of anti-Muslim 
sentiments in American workplaces, I want to ensure that both 
employees and employers work together to an environment of 
mutual respect, as well as we are proud to speak out on behalf 
of protecting religious diversity in the workplace, and we 
believe H.R. 1431 will protect individual rights and enhance 
interfaith understanding.
    Thank you very much.
    [The statement of Ms. Al-Suwaij follows:]

 Prepared Statement of Zainab al-Suwaij, Executive Director, American 
                            Islamic Congress

    Mr. Chairman and Members of the Committee: Thank you for inviting 
me to testify to you today on this important topic. As someone who is 
an American citizen by choice--not by birth--it is a special honor to 
be invited to speak before you today. I was drawn to become an American 
citizen because of our country's sincere and unique commitment to 
religious freedom and individual rights. I am here today to share with 
you my perspective on respecting these rights in workplaces across the 
country.
    I appear before you as a Muslim-American who has experienced 
discrimination in the workplace, as well as in my capacity as executive 
director of the American Islamic Congress, a civil rights organization 
promoting tolerance and the exchange of ideas among Muslims and between 
other peoples.
    As a native of Basra, Iraq, I did not grow up experiencing 
individual liberty. Instead, my childhood was spent under a repressive 
dictatorship, in an environment where classmates could disappear simply 
for discussing politics in school. Rather than encourage respect for 
diversity and religious difference, teachers often taught hatred. I 
recall one elementary school teacher telling our class that Hitler was 
a great man because he burned Jews alive.
    Even as a child, I stood out. I challenged teachers who praised 
Hitler, I refused to join the Ba'ath party--and I wore hijab. It may 
seem hard to believe, but in the early 1980s, Basra was a largely 
secular city and I was the only student in my third-grade class to wear 
the hijab. I come from an established family of Iraqi clerics; wearing 
hijab is part of my family tradition. For that decision, I was 
criticized by my teachers in the classroom--but I stayed true to my 
beliefs.
    In 1991, I participated in the failed uprising against Saddam 
Hussein, which initially succeeded in liberating most Iraqi provinces 
but was then crushed when the US broke its promise to help. I fled Iraq 
with nothing, met my husband, and moved to the US. For the first time 
in my life, I experienced real freedom. I could say what I wanted, be 
who I wanted, and be comfortable in my own identity. It was a dream 
come true.
    Of course, life is never so simple. I remember going for a job 
interview some years ago. The woman interviewing me was clearly 
uncomfortable because of my hijab. At one point, she asked me: ``Do you 
wear that thing on your head at night only, or also during the day?'' 
The implication was clear: Wearing hijab on the job was a no-no. I 
calmly explained to her that I wear the hijab whenever I am in public, 
but I realized that the interview was effectively over.
    Later, I worked at Interfaith Refugee Ministry, the refugee 
resettlement arm of Episcopal Social Service. Many of my clients were 
individuals fleeing repression in the Muslim world who had come to the 
US seeking a better life. Some of my clients experienced discrimination 
in the workplace because of their religious practices. One woman was 
asked to change the way she covered her hair at work so it would be 
less ``troublesome'' to customers. One man requested five minutes at 
noon for midday prayer, but was denied by his employer. I did my best 
to assist them, but typically found there was little I could do.
    After the terrible terror attacks of September 11, 2001, I decided 
to take action. The terror I thought I had left behind had suddenly 
followed me here, targeting the country I loved and me and my family. 
With a group of concerned Muslim-Americans, I co-founded the American 
Islamic Congress.
    We are a non-religious civic initiative challenging increasingly 
negative perceptions of Muslims by advocating responsible leadership 
and `two-way' interfaith understanding. As Muslim-Americans, thriving 
amidst America's multicultural society and civil liberties, we promote 
these same values for the global Muslim community. We are not afraid to 
advocate unequivocally for women's equality, free expression, and 
nonviolence--making no apologies for terrorism, which primarily claims 
Muslim lives.
    We are ``passionate about moderation'' and led by a group of young 
activists in their 20s and 30s. We are advancing a new responsible 
Muslim civic leadership. In fact, every month we host a Capitol Hill 
Distinguished Speakers Series on Muslim affairs, co-sponsored here on 
the Hill by the Religious Freedom and Anti-Terrorism caucuses.
    As the executive director of the American Islamic Congress, I 
appeal to you today to take action to protect religious liberty and 
individual rights in the workplace. We Muslim-Americans, passionate 
about moderation, share the values this country has been built on. Many 
of us have come to the United States fleeing religious persecution and 
political repression. Muslim-Americans deserve the same equal treatment 
as all other Americans, and we do not want to see our religion used to 
discriminate against us.
    To be specific, Muslim-American women who choose to wear hijab have 
the right to work with their headscarf on and should not fear 
repercussions from employers. Muslim-American workers who choose to 
pray five times a day have the right to conduct prayers during work 
hours. Muslim-Americans who choose to have the right to abstain from 
handling alcohol or pork. All of these personal freedoms do not need to 
disrupt American workplaces and should be able to be integrated in a 
decent way that respects workers of all backgrounds.
    Respecting workplace diversity, I should add, extends to Muslim 
employers as well. As part of our ``two-way'' understanding, we in the 
Muslim community need to take practical steps to address discrimination 
from within our own community. Muslim employers should similarly not 
discriminate on the basis of gender, race, or religion.
    Indeed, there is an enormous religious diversity within the Muslim 
community, which must be recognized. We Muslim-Americans are a 
remarkable diverse community: Sunnis of diverse religious traditions, 
Shi'a of diverse religious traditions, numerous minority sects, and of 
course people of Muslim heritage who are not religious. There is not 
one way to practice Islam, and the diversity within our community needs 
to be respected.
    The American Islamic Congress is proud to celebrate the diversity 
of the Muslim community and its contribution to the diversity of 
American society. We are proud to speak out on behalf of protecting 
religious diversity in the workplace, and we believe resolution 1431 
will protect individual rights and enhance interfaith understanding.
    As someone who grew up under hard repression and religious 
intolerance, I recognize how precious American freedoms are. As someone 
who has witnessed some examples of anti-Muslim sentiments in American 
workplaces, I want to ensure that both employees and employers work 
together in an environment of mutual respect. By coming together to 
promote religious diversity here in the US, we will offer a shining 
example to countries and societies around the world of how people of 
diverse religious outlooks can work together to advance a tolerant and 
free society.
                                 ______
                                 
    Chairman Andrews. Ms. Al-Suwaij, thank you for your very 
eloquent and moving testimony. Thank you very, very much.
    Ms. Goldstein, we are very happy to have you with us.

         STATEMENT OF JUDY GOLDSTEIN, SPEECH THERAPIST

    Ms. Goldstein. Thank you. And good afternoon, Mr. Chairman 
and distinguished members of the subcommittee.
    I thank you for inviting me here today and allowing me the 
opportunity to share with you my recent experience as a 
Sabbath-observant Jew in the workforce.
    My name is Judy Goldstein, and I am a New Jersey resident. 
I have recently graduated with a master's in speech and 
language pathology. Providing speech and language services to 
the pediatric population is my passion, as I believe it offers 
a child the central keys to achieving success in life.
    On January 8, 2008, I was interviewed by a supervisor of a 
public school located approximately a 45-minute drive from my 
home. The position for which I interviewed entailed providing 
speech and language services for children in kindergarten 
through fifth grade. It was a nonunion position.
    On January 13, 2008, I received a job offer orally from the 
H.R. Department. At that time, I was informed that the job was 
from Monday through Friday, 8:55 a.m. to 3:35 p.m.
    As a person who strives to always act honorably, when I 
accepted the position, I explained that I am a Sabbath observer 
and that, in order for me to properly observe the Sabbath, I 
would be required to leave work 1 hour early on certain 
Fridays, essentially during the winter months when the sun sets 
early. This would allow me adequate time to ride home before 
the onset of the Sabbath.
    The gist of her response was, ``I am sorry. We would have 
loved to have you on board. However, we cannot accommodate your 
needs. There are a lot of individuals employed, and they each 
have their own specific religious requirements. If we 
accommodate your needs, we need to accommodate theirs.''
    It was never my intention to shirk my responsibilities to 
the school or to the students. I was willing to work out a 
mutually acceptable arrangement with the school so that both of 
our requirements could be met. For example, I offered to come 
in 40 minutes early on Friday, the time allotted for 
preparation, and prepare then. Additionally, I offered to skip 
the 20-minute lunch break I was entitled to.
    Again, to these suggestions, the response was negative. 
These alternatives would not work as I would be required to be 
there for the contractual school hours from 8:55 a.m. to 3:35 
p.m. period.
    I then contacted a supervisor who initially interviewed me 
and explained my predicament. She said that it was most likely 
a problem to accommodate my needs, but that she would consult 
H.R.
    She did add that she might be able to offer me a high 
school caseload instead of the initial offer at the elementary 
school. This would avoid the problem as the high school ends at 
2:20 p.m. However, this was not the job I was interviewed for, 
nor the one I was offered and accepted.
    I reiterated my desire to work with the caseload for which 
I had interviewed. We concluded that she would get back to me 
after speaking with Human Resources.
    A couple of days later, I emailed the supervisor to ask her 
where the job offer stood. She replied that the district was 
unable to accommodate my request and, therefore, assumed I was 
not taking the position. But, in reality, I had never rejected 
the position. I accepted the position. But when the district 
decided that it would not accommodate my religious needs, it 
effectively rescinded the offer.
    I contacted an Orthodox Jewish organization that deals with 
these kinds of issues, and they in turn referred me to a 
lawyer. He explained to me that religious accommodations is not 
something that is provided at the whim of an employer, but that 
is a requirement provided for in federal and state law. The 
attorney advised me to send copies of these laws to the school 
along with a letter reiterating my willingness to make up the 
accommodated time.
    The H.R. Department responded that they were providing an 
accommodation by offering an alternative position at the junior 
high, but, as I have already stated, this was neither the job I 
sought or was interviewed for. It was an entirely new position.
    My interest was to find employment, not to pursue this 
further in court. It was not to embarrass anyone or get anyone 
in trouble. It was not to force anyone to hire me and work in a 
strained environment. To be honest, I was also worried about 
what effect it would have on my future prospects as employers 
surely do not want to hire employees that cause trouble. 
Indeed, it is not without concern for my future prospects that 
I appear here before you today.
    Mr. Chairman and distinguished members of the subcommittee, 
I am neither a legislator nor a lawyer, and I cannot speak in 
any informed way about the law, but I can say this: I was 
interviewed for a job in my chosen field. I was deemed fully 
competent and was offered a position on merit and ability. I 
accepted. I disclosed my need for Sabbath accommodation. The 
offer was immediately rescinded.
    I suggested a number of ways I could have fulfilled my 
professional responsibilities. No one claimed that these 
alternatives would not work. It was not the type of position, 
unlike that of a teacher in charge of a classroom of students, 
for example, that required me to be there until the bell rang.
    I was told that I was being offered an accommodation, 
though it was a different position.
    So bottom line is that I was not hired in the end because 
of my religious observance.
    Again, thank you for allowing me to testify today about my 
experience. It was a disheartening and disillusioning one for 
me. But if my testimony will help others be spared the same 
experience, then I feel that I have made a modest contribution.
    Thank you for listening.
    [The statement of Ms. Goldstein follows:]

         Prepared Statement of Judy Goldstein, Speech Therapist

    Thank you and good afternoon, Mr. Chairman and distinguished 
members of the Subcommittee.
    I thank you for inviting me here today and allowing me the 
opportunity to share with you my recent experience as a Sabbath-
observant Jew in the workplace. My name is Judy Goldstein, and I reside 
in New Jersey. I have recently graduated from Nova Southeastern 
University, with a master's degree in Speech and Language Pathology. 
Providing speech and language services to the pediatric population is 
my passion, as I believe it offers a child the essential keys to 
achieving success in life.
    On January 8, 2008, I was interviewed by a supervisor of a public 
school located approximately a 45 minute drive from my home. The 
position for which I interviewed entailed providing speech and language 
services for children in kindergarten through 5th grade. It was a non-
union position. On January 13, 2008, I received a job offer, orally, 
from the Human Resource Representative. At that time, I was informed 
that the position was from Monday through Friday, 8:55 AM to 3:35 PM. 
As a person who strives to always act honorably and ethically, when I 
accepted the position, I explained that I am a Sabbath observer and 
that, in order for me to properly observe the Sabbath, I would be 
required to leave work one hour early on certain Fridays of the year--
essentially during winter weeks--when the sun sets early. This would 
allow me adequate time to arrive home before the onset of the Sabbath.
    The gist of the representative's response was, ``I am sorry, we 
would have loved to have you on board. However, we cannot accommodate 
your needs. There are many other individuals employed who have their 
own specific religious requirements and if we accommodate your needs, 
we will have to accommodate everyone's needs''.
    It was never my intention to shirk my responsibilities to the 
school or to the students. I understood that it might be necessary--and 
I was quite willing--to work out a mutually acceptable arrangement with 
the school so that both of our requirements could be met. For example, 
I offered to come in 40 minutes earlier on Friday, the time allotted 
for preparation time, and prepare then. I explained that preparation 
time does not involve participation of the students, and therefore is 
not dependent on their presence. I was also willing, and offered, to 
skip the 20 minute lunch break I was entitled to. Again, to these 
suggestions, the response was negative--the school was sorry, but these 
alternatives would not work, as I was required to be there for the 
contractual school hours, which are 8:55-3:35. Period. I was willing to 
pursue the matter further and pursue other arrangements but it was 
clear to me that the discussion was over.
    I then contacted my prospective supervisor who initially 
interviewed me, and explained my predicament. She said that the need 
for accommodation was most likely a problem, but that she would consult 
HR. She did add that there was a possibility she might be able to offer 
me a high school caseload, instead of the initial offer at the 
elementary school. This would avoid the problem, as the high school 
ends at 2:20 PM. However, in all honesty, this possible offer was 
deeply disappointing and disconcerting to me. This was not the job I 
interviewed for, nor the one I was offered. It was not in the area of 
my specialty, nor the one of my choice. Indeed, I reiterated that my 
strength and interest is to work with younger children, and I again 
expressed my desire to work with the caseload for which I had 
interviewed. At the end of our discussion we concluded that she would 
get back to me after speaking to human resources.
    A couple of days later, I emailed the supervisor to ask where the 
job offer stood. She replied that the district was unable to 
accommodate my request to leave work 1 hour early a week for 
approximately 3 months in the winter, and therefore assumed that I was 
not taking the position. But I had never really rejected the position. 
In fact, I accepted it, but when the district decided that it would not 
accommodate my religious needs, it effectively reneged on the offer.
    I contacted an Orthodox Jewish organization that deals with these 
kinds of issues, and they in turn referred me to an experienced 
discrimination attorney. He explained to me that religious 
accommodation is not something that is provided at the whim of an 
employer or out of the goodness of his or her heart, but that it is a 
requirement provided for in Federal and State law.
    The attorney advised me to send copies of these laws to the school 
officials, along with a letter, reiterating my willingness to work on 
any other non-religious work days or early morning non-scheduled 
working hours to make up the accommodated time. The HR department 
responded that they were providing an accommodation by offering an 
alternative position at the Junior high school. But, as I have already 
stated, this was neither my specialty nor my interest. It was not the 
job I sought and was interviewed for. It was not the position I was 
offered and accepted. It was not the position that was represented to 
me--it was something else entirely.
    My interest was to find employment not to pursue this further in 
court. It was not to embarrass anyone or get anyone in trouble. It was 
not to force anyone to hire me and work in a strained environment. To 
be honest, I was also worried about what effect it would have on my 
future prospects--as employers surely do not want to hire employees 
that ``cause trouble.'' Indeed, it is not without concern for my future 
prospects that I appear here, before you, today.
    Mr. Chairman and distinguished members of the Subcommittee, I am 
neither a legislator nor a lawyer--and I cannot speak in an informed 
way about the law. But I can say this--I was interviewed for a job in 
my chosen field. I was deemed fully competent and was offered a 
position on merit and ability. I accepted. I disclosed my need for 
Sabbath accommodation. The offer was immediately rescinded. I suggested 
a number of ways I could fulfill my professional responsibilities. No 
one claimed that these alternatives wouldn't work. It was not the type 
of position--unlike that of a teacher in charge of a classroom of 
students, for example--that required me to be in school until the bell 
rings. I was told that I was being offered an accommodation, though it 
was a different position. The bottom line is that I was not hired in 
the end because of my religious observances--If we have to accommodate 
your religious needs, we'll have to accommodate others.
    Again, thank you for allowing me to testify today about my 
experience. It was a disheartening and disillusioning one for me. But 
if my testimony will help others be spared this same experience, then I 
feel that I have a modest contribution.
    Thank you for listening.
                                 ______
                                 
    Chairman Andrews. Well, Ms. Goldstein, your very 
provocative and insightful testimony, we think, occurred 
because you are neither a lawyer nor a legislator. [Laughter.]
    We thank you for both of those points and thank you for 
your testimony.
    Mr. Standish, welcome to the subcommittee.

 STATEMENT OF JAMES STANDISH, DIRECTOR OF LEGISLATIVE AFFAIRS, 
                  SEVENTH-DAY ADVENTIST CHURCH

    Mr. Standish. Thank you so much.
    Chair Andrews, Ranking Member Mr. Kline, other members of 
the committee, it is an honor to represent the headquarters of 
the Seventh-Day Adventist Church. There are about 15 million 
Seventh-Day Adventists around the world. We operate over 600 
health care facilities, and we have about 1.3 million students 
enrolled in our education system.
    I am particularly proud of the work that we do for the 
least advantaged in our world particularly. For example, our 
hospitals and clinics in sub-Saharan Africa treat over 800,000 
HIV-AIDS positive patients every year. That is the outworking 
of our faith and our Lord and Savior Jesus Christ.
    Another commitment that we make as Seventh-Day Adventist 
Christians is to aim to keep the Ten Commandments under the 
grace of Christ. That is all 10, including the commandment to 
rest on the Sabbath Day. Increasingly, however, we are finding 
American employers unwilling to accommodate our sincerely 
religious belief, and not just ours, but people of faith across 
the religious spectrum.
    We have heard today from a Muslim woman, a Jewish 
representative. I am a Christian. If you talk to Sikhs and 
other Christians, you will find that this problem pervades 
across the spectrum.
    Indeed, you do not have to just take our word for it. The 
U.S. Equal Employment Opportunity Commission reports that 
between 1993 and 2006, the number of religious discriminations 
claims filed with them went up 83 percent. That is a huge 
increase. During that same period, for point of reference, 
claims involving racial discrimination went down 8 percent, and 
other major claim categories also held steady or went down. We 
have a serious civil rights problem of an increase in the 
refusal to accommodate the religious beliefs of American 
workers.
    Part of the reason for this is because of the current weak 
state of the law, which permits employers to arbitrarily refuse 
to accommodate the sincerely held religious beliefs of 
employees. The Workplace Religious Freedom Act will fix the 
loopholes in the current law to ensure that when an American 
employee comes forward with a faith commitment that they are 
treated with respect and dignity and that, if they can be 
accommodated, they are accommodated instead of being 
marginalized from the American economy.
    There are two principal objections to this bill. First, we 
are told by opponents of the bill that this will result in an 
increase in litigation on employers. We know that is not the 
fact for two reasons. First of all, the economics of bringing 
these cases disfavors their bringing. Particularly, the amounts 
of damages tend to be very, very low because the employees who 
are impacted disproportionately are low-income employees. So 
the amounts of damages, which are lost wages, are very, very 
small.
    And members of the private plaintiffs' bar do not take 
these cases now. They are not going to take them after WRFA is 
enacted because the economics do not change.
    Secondly, we have an example up and going right now, and 
that is in New York State where we have a WRFA-like standard. 
In New York State, we have been told by the Human Rights 
Commission there that the claims of religious discrimination 
have actually dropped 4 of the last 5 years. After the WRFA-
like standard was implemented, the number of claims dropped 4 
of the last 5 years. They dropped on the state basis. They will 
drop on the national basis because it helps people come 
together.
    Secondly, we are told that if WRFA is passed, it will 
result in perverse outcomes where third parties are harmed, 
whether those are gay, lesbian, bisexual employees being 
harassed in the workplace or an inhibition of patients to gain 
health care services.
    Once again, we know that this claim is incorrect. We know 
that for two reasons. First of all, the modest standard in WRFA 
would no means require employers to refuse products or services 
on a timely basis. The standard just simply is not that strong.
    Secondly, once again, in New York, we have the standard up 
and going, and opponents of this bill have yet to find a single 
case in which harassment was privileged in New York under the 
WRFA standard or services were denied.
    They have found claims that were brought nationwide over 
the last 30 years, a very, very small handful. In each case, 
the plaintiff lost. They would lose, they lost now, and they 
will lose in the future.
    Before I close, I want to show you a picture. I cannot help 
it. I am a proud dad. These are my daughters. If my daughters 
grow up and they want to follow the faith of their mother, 
their two grandmothers, or their four great-grandmothers, how 
are they going to be treated in the workplace? Are they going 
to be marginalized? Are they going to be harassed? Are they 
going to be fired when they could easily be accommodated?
    I would suggest to you this afternoon the answer to that 
question is largely in your hands. If we do not pass WRFA, the 
problems to Seventh-Day Adventists and other people of faith in 
the workplace will increase. If you do pass it, we will have a 
balanced bipartisan piece of legislation that finds the middle 
ground to ensure that our value of religious freedom is 
protected and workers' rights.
    Thank you very much, Mr. Chairman.
    [The statement of Mr. Standish follows:]

  Prepared Statement of James D. Standish,\1\ Director of Legislative 
        Affairs, Seventh-Day Adventist Church World Headquarters

    Chairman Andrews, Ranking Member Kline and Subcommittee Members, I 
am grateful for the opportunity to testify in support of the Workplace 
Religious Freedom Act, H.R. 1431 (WRFA), on behalf of the Seventh-day 
Adventist Church.
     The Seventh-day Adventist Church has 15 million members 
worldwide.
     Adventists operate 165 hospitals, 432 clinics and 
dispensaries, 123 nursing homes and retirement centers, and 34 
orphanages worldwide. In addition, Adventists operate three medical 
schools, three dental schools, 50 schools of nursing and six schools of 
public health.
     There are 62 Adventist hospitals located in the United 
States.
     Adventists operate 6,709 schools, 99 colleges and 
universities, 39 training institutes, with a total enrollment of 
1,254,179 students worldwide.
     There are 1,020 Adventist schools in the United States.
    I am particularly proud that Seventh-day Adventist healthcare 
provides critical treatment in some of the world's most impoverished 
regions. For example, Adventist hospitals and clinics provide care for 
over 800,000 HIV/AIDS sufferers in sub-Saharan Africa each year.\2\ 
Further, in many areas of the world, Adventist schools provide the only 
accessible education for children from disadvantaged families.
    This practical ministry of healing and teaching is the outworking 
of our faith commitment that has at its core a trust in the saving 
grace of our Lord, Jesus Christ. As part of this commitment, Seventh-
day Adventist Christians aspire to keep the Ten Commandments under the 
grace of Christ. This includes resting from secular work on the seventh 
day of the week as required by God in the Ten Commandments.\3\
    While there is debate within the Christian community regarding 
which day of the week to keep holy, and further if or how to keep the 
Sabbath holy, there is no debate that throughout church history some 
Christians have continued to keep the Sabbath day holy on the seventh 
day of the week (Saturday). Further, there is no debate that the 
Seventh-day Adventist commitment to setting aside the Sabbath to 
worship God is based on a sincerely held religious belief.
    Today there is significant discussion over if and how the Ten 
Commandments should be displayed in government buildings. As important 
as these debates may be, a much more important question is how people 
are treated when they actually keep the Ten Commandments.
    Sadly, the experience of Seventh-day Adventist Christians in recent 
years indicates an increased hostility to accommodating Sabbath 
observance. Indeed, the rise in hostility to accommodating the 
sincerely held religious beliefs of American workers is not limited to 
Seventh-day Adventist Christians, but rather falls across the faith 
spectrum. We know this both from reporting done by the various faith 
communities, and from statistics kept by the United States Equal 
Employment Opportunity Commission (EEOC) that will be discussed in the 
next section of this testimony.
    I co-chair a coalition of 49 national religious organizations who 
have come together in support of WRFA. A full list of the coalition 
members is provided as Exhibit A to this testimony. It is rare that 
entities with such diverse theological views and public policy 
priorities agree on any given piece of legislation. Indeed, at this 
time there may well be no other issue that shares such deep and broad 
multi-faith support. The increase in hostility to religion in the 
American workplace has brought this disparate group together to support 
a vital improvement in the law to protect the religious freedom of 
America's workers.
Deficiency in the Current Legal Standard
    Title VII of the U.S. Civil Rights Act of 1964 as amended in 1972 
requires employers to ``reasonably'' accommodate the religious 
practices of their employees unless, by so doing, the employer would 
incur an ``undue hardship on the conduct of the employer's business.'' 
\4\ The Act itself does not define the terms ``reasonably accommodate'' 
and ``undue hardship,'' and thus it was the role of the courts to 
provide clarification.
    With scant legislative history to build upon, the Supreme Court 
found that undue hardship means anything above a de minimis cost or 
inconvenience.\5\ By so doing, the Court greatly reduced the impact of 
the accommodation requirement.\6\
    Further, there is a split among federal courts on the definition of 
``reasonable'' accommodation. Some Circuits have held that in order to 
be considered a reasonable accommodation for the purposes of Title VII, 
the accommodation must eliminate the conflict between the religious 
practice in question and the employer's requirement. The 8th Circuit, 
on the other hand, recently held that an employer may ``reasonably 
accommodate'' by an offer to only partially accommodate the religious 
practices of employees.\7\
    Thus, under the current legal standard, an employee in some 
jurisdictions faces two prohibitive barriers to successfully bringing a 
Title VII accommodation claim: First, if an employer offers a partial 
accommodation the court may hold the offer is a ``reasonable'' 
accommodation. In this case, the employee loses, whether or not the 
employer could have offered an accommodation that removed the conflict 
entirely. But employers also get a second bite of the apple. Even when 
a court finds an offer of partial accommodation does not meet the Title 
VII threshold, an employer wins if he can show that accommodating an 
employee's sincerely held religious beliefs would result in anything 
above the most minimal inconvenience.
    For employers unwilling to respect the religious diversity of the 
American workforce, the weakness of the current standard provides a 
two-pronged gift of legal impunity.
    The weakness in the current law created a growing problem of 
religious discrimination in the American workplace. The U.S. Equal 
Employment Opportunity Commission reports that claims involving 
religious discrimination in the workplace increased 83% between 1993 
and 2006.\8\ In contrast, racial discrimination claims declined by 8% 
during the same period, and other major categories of claims have held 
roughly steady or declined.\9\
    Thus, the rise in religious discrimination claims is not an 
artifact of an increasingly litigious society. Rather, the rise in 
religious discrimination claims while other major classes of 
discrimination have remained level or falling, indicates a substantive 
growth in intolerance of religion in the American workplace. This is 
particularly perplexing as the rise comes at a time when many American 
employers have implemented programs and policies to advance the 
acceptance of diversity in the workplace.
    Four primary reasons have been advanced to explain the increase in 
religious discrimination.
     First, the economy increasingly operates on a 24-hour, 7-
day-a-week schedule. This schedule necessarily conflicts with people of 
faith who celebrate particular holy days, whether it be a weekly 
Sabbath or annual holy days.
     Second, due largely to changes in immigration patterns, we 
are an increasingly religiously diverse society, and our religious 
diversity now exists in parts of the nation that were largely 
religiously homogenous up until relatively recent times. In the case of 
religious practice, unfamiliarity may breed contempt or at least 
intolerance. Intolerance towards non-Western religions may be 
exacerbated by the overlap between religious practice and race, 
ethnicity and national origin.
     Third, the number of religious discrimination claims saw 
their largest increase after 9/11 when Muslim and Sikh Americans 
reported a sharp spike in demands to remove any garb or grooming that 
would indicate their faith affiliation. Unfortunately, the level of 
claims reached after 9/11 has not subsided in the years subsequent.\10\
     Fourth, America may be becoming an increasingly 
materialistic society, in which our family life, our environment, and 
even our spirituality are becoming subordinated to our mercantile 
drive.
    Whatever the factors behind the meteoric rise in religious 
discrimination claims, the impact on individuals cannot be overstated. 
To lose a job does not merely mean losing an income. As one worker put 
it: ``I have been through a divorce, I've buried both my parents, but 
nothing has been as painful as losing my job, because without work, 
I've lost my independence.'' Another stated: ``when I lost my job, I 
didn't just lose an income, I lost my self esteem, I lost my health 
insurance, I lost my ability to support my children, and I lost my 
dreams.''
WRFA Addresses the Loopholes in the Current Law
    The serious increase in religious discrimination claims, with the 
accompanying personal hardship caused, requires us to close the current 
loopholes in the law that permit employers to arbitrarily fire American 
workers in retaliation for them following their faith commitment. WRFA 
is a simple piece of legislation that has two central provisions:
    The first provision defines the meaning of ``undue hardship'' in 
Title VII as an accommodation that would require significant difficulty 
or expense.\11\ By clarifying the meaning of ``undue hardship,'' WRFA 
increases the protection from the current de minimis standard that 
provides virtually no protection to American workers, to a legal 
standard that provides moderate incentive to work out an accommodation.
    The second central provision of WRFA states that an accommodation 
of religious practice is not a ``reasonable accommodation'' unless it 
removes the conflict between the religious practice and the work 
requirements.\12\
    It is vital to understand how these two provisions work together. 
For an accommodation to be considered reasonable, post-WRFA, it must 
eliminate the conflict between the employer's requirements and the 
employee's religious practice. Thus, for example, an accommodation that 
would offer a Seventh-day Adventist Christian employee two Saturdays 
off every month, would not qualify as a reasonable accommodation as it 
would not remove the conflict. This does not mean, however, that the 
Adventist employee would prevail in her claim.
    Rather, once the accommodation options available to remove the 
conflict are determined, the court will then analyze whether the 
employer can implement the reasonable accommodation without incurring a 
significant difficulty or expense. If the employer can show that 
removing the conflict cannot be done without incurring a significant 
difficulty or expense, the employer wins.
    In practice, the vast majority of accommodation issues are handled 
informally in the workplace. The new WRFA standard provides an 
incentive for reticent employers to seriously explore whether they can 
accommodate the needs of America's religiously diverse workforce. In 
the overwhelming majority of cases, accommodations can be worked out 
with little fuss if there is a willingness--and incentive--on both 
sides to do so. The employee always has an incentive, as her job is on 
the line. WRFA provides the necessary incentive to recalcitrant 
employers to search for an accommodation in good faith.
Objections to WRFA
    There are two principle objections to providing protection for 
people of faith in the workplace.
     First, there are concerns that protection for people of 
faith will increase litigation, and particularly litigation involving 
sham religious claims.
     Second, there is concern that protecting American workers 
will burden third parties.
WRFA Will Reduce, Not Increase, Litigation
    WRFA will reduce litigation for three reasons. First, it eliminates 
the current incentive for recalcitrant employers to refuse to explore 
accommodation options. Second, it does not change the current financial 
disincentive for attorneys from the private bar to represent victims. 
Third, it does not eliminate the legal and financial disincentive to 
bring sham claims. The experience in New York State bears out the fact 
that religious discrimination claims drop after the implementation of 
the WRFA standard.
WRFA Eliminates Incentive to Arbitrarily Refuse Accommodation
    Experts in the area of employment law agree that one of the 
contributing factors to the dramatic rise in religious discrimination 
claims at the federal level is the weakness of the accommodation 
provisions as currently understood. Mitch Tyner, who managed more than 
200 Sabbath accommodation cases\13\ during his career in the general 
counsel's office at the headquarters of the Seventh-day Adventist 
Church, states ``a contributing factor to the dramatic rise in 
religious discrimination claims at the federal level in recent years is 
the weakness of current federal law.'' Todd McFarland, associate 
general counsel at the headquarters of the Seventh-day Adventist Church 
states: ``Most of the claims can easily be resolved when there is a 
will on both sides. The weakness in federal law, however, provides an 
incentive for recalcitrant employers to hold out rather than working 
constructively to find a solution. They know that in the remote chance 
a claim is litigated, the employer holds all the cards.''
    While there is relatively little incentive for a recalcitrant 
employer to accommodate the religious beliefs of their employees under 
current law, this does not deter people of faith in the workplace 
asserting their rights. This is because people of strong religious 
conviction are committed to following their conscience. In the words of 
the Apostles, they believe ``we must obey God rather than men.'' \14\ 
As a result, the remote chance of prevailing under current law does not 
reduce the number of claims asserted. Rather, the law encourages 
recalcitrant employers to refuse accommodation, while having little 
impact on the willingness of the faithful to follow their convictions. 
These two forces combine to increase the number of claims under the 
current weak legal standard.
    WRFA provides an incentive to both employers and employees to work 
out an accommodation if it is possible. Although the rise is religious 
discrimination claims is alarming, religious intolerance in the 
workplace remains the experience of a minority of employees indicating 
that the majority of America's employers value the religious diversity 
of their workforce and already work out accommodation. WRFA will 
provide an added incentive to recalcitrant employers to do the right 
thing before a case results in litigation. WRFA is written to provide 
additional clarity and thereby reduce misunderstandings. In addition, 
as discussed below, the economics of bringing religious accommodation 
cases discourage litigation and virtually eliminates sham religious 
claims.
WRFA Doesn't Eliminate Financial Disincentive for Bringing Claims
    There are significant financial disincentives to bringing religious 
accommodation cases and these will not change after WRFA is enacted. 
Damages in accommodation cases tend to consist of lost wages, which are 
frequently modest because the workers involved are typically on the low 
end of the wage scale. As a result, finding attorneys willing to bring 
these cases can be difficult, and it is highly unlikely an attorney 
would be willing to invest the time and effort to bring a case 
involving a sham claim. In addition, while courts do not examine the 
validity of religious beliefs themselves, they do examine the sincerity 
of the individual's claim.\15\
    To date, critics of WRFA have not been able to identify a single 
sham religion claim that has succeeded under Title VII or its state 
equivalents during the 35 years the religious accommodation requirement 
has been in place. The lack of financial incentive to bring a sham 
claim, combined with the court's power to investigate whether a claimed 
religious belief is indeed sincerely held, likely explains the dearth 
of examples. Sham claims are not a factor in accommodation claims to 
date, and there is nothing in WRFA that would change this reality.
    An example helps to illustrate the financial disincentives of 
brining workplace accommodation cases. If an employee earns $20,000 per 
annum, and is fired by an employer who refuses to accommodate her 
religious convictions, and if that employee is out of work for an 
entire quarter, the damages involved in the case are only $5,000. The 
expense of going through the administrative process and then litigation 
seldom justifies the damages involved. It is not surprising that many 
Title VII accommodation cases brought today are brought by religious 
entities attempting to vindicate a principle, rather than by attorneys 
in the private bar. The financial disincentive involved in bringing 
these cases will not change post WRFA.
Accommodation Claims in New York Dropped Dramatically Post WRFA
    If there were any doubts at all about the impact of WRFA, the 
experience of New York State addresses them. Since adopting the WRFA 
standard, religious discrimination claims have been lower in four out 
of five years.\16\
    There is no reason to believe the passage of WRFA will increase the 
number of religious discrimination claims or encourage sham claims. 
Rather, WRFA will reduce the number of claims as it provides an 
incentive to work out commonsense accommodations. This is the 
experience in New York State and it will be the experience nationwide.
WRFA Will Advance Civil Rights, Not Harm Them
    It is important to remember when discussing the civil rights impact 
of WRFA that religious liberty is our first civil right. The Pilgrims 
fled from Britain to the Netherlands, and from the Netherlands to 
America in order to experience religious freedom. Roger Williams left 
Massachusetts to found Rhode Island in order to experience religious 
freedom. The first provisions in the First Amendment to our 
Constitution are designed to protect religious freedom. And many 
Americans can trace our roots back to a family member who fled to the 
United States to escape religious intolerance. Ensuring that American 
workers are not arbitrarily forced to choose between their livelihood 
and their faith is a vital step forward to advancing our core civil 
right of religious freedom.
    Critics of WRFA have raised emotive objections but lack evidence to 
support them. Specifically, they claim WRFA will privilege harassment 
and the denial of reproductive healthcare services. On March 20th, 
2007, the ACLU circulated a letter opposing WRFA. In the letter, the 
ACLU referred to a miniscule minority of cases brought under Title VII 
in the last three decades that involved emotive claims. In every case, 
the plaintiff lost. There is no rational basis to believe the outcome 
would be any different post-WRFA. Despite this, the ACLU urges Congress 
to oppose WRFA because ``Congress has no assurance that courts will 
continue to reject claims that could cause important harm.'' The ACLU 
is wrong. Congress has every reason to believe that claims that would 
harm third parties will not succeed under WRFA. WRFA will not privilege 
the denial of products or services to customers. We know this for two 
reasons.
    First, the bill's modest accommodation requirement is insufficient 
to require employers to turn away customers, let alone compromise 
patients' healthcare or public safety. Further, there is no rational 
basis for concluding the bill will privilege the harassment of 
employees. If there was, the minority faiths currently supporting the 
bill would be the first to oppose it since our members are vulnerable 
to religious based harassment in the workplace.
    Second, New York State law that tracks the WRFA standard can be 
observed. Critics of WRFA have not been unable to point to a single 
incidence in which the NY State law has been interpreted to privilege 
employees denying customers/patients services or products in a timely 
manner. Nor have they found a single case in New York where WRFA was 
interpreted to privilege harassment. It is incumbent on those making 
remarkable claims to back those claims up with solid evidence. Critics 
of WRFA have been unable to do so. As such, while the emotive scenarios 
presented by critics of WRFA may elicit fear, it is an irrational fear.
    Opponents of virtually every piece of legislation presented in 
Congress create a parade of horribles to discourage its passage. Rather 
than succumb to irrational fear, we must keep in mind the reality of 
WRFA's modest accommodation standard and the experience at the state 
level. In the case of WRFA, we have a serious, growing, well documented 
violation of civil rights occurring. Against this reality, critics 
parade the most speculative negative outcomes of its passage without a 
single case to back up their conclusion that WRFA will result in their 
outcomes. Between the facts presented by the supporters of WRFA, and 
the emotive fiction of its adversaries, the choice is clear.
    Indeed, it is not only the diverse coalition supporting WRFA that 
rejects the critics' parade of horribles. Governor Eliot Spitzer wrote 
the following critique of the ACLU's efforts to defeat WRFA when he was 
New York Attorney General:
    ``I have the utmost respect for the ACLU, but on this issue they 
are simply wrong. New York's law has not resulted in the infringement 
of the rights of others, or in the additional litigation the ACLU 
predicts will occur if WRFA is enacted. Nor has it been burdensome on 
business. Rather, it strikes the correct balance between accommodating 
individual liberty and the needs of businesses and the delivery of 
services. So does WRFA.'' \17\
    Despite the lack of evidence for the critics' objections to WRFA, 
the coalition supporting WRFA is not opposed to inserting language into 
the bill that specifically indicates the WRFA standard is not to be 
interpreted to require accommodations that would cause harm to third 
parties--whether they be coworkers or customers. The ACLU has rejected 
this offer to date, preferring to insist on creating a legal standard 
that would provide a higher level of protection to selected religious 
practices they find innocuous and a lower level of protection for all 
other practices. We believe this approach to be both unjust on its 
face, and possibly unconstitutional.
Restricted Bill is Unjust & Creates Constitutional Questions
    The ACLU's proposed a restricted bill would provide the WRFA 
standard to a limited set of religious practices which the ACLU 
selects, while leaving all other religious practices unprotected by 
WRFA. The restricted approach strikes at the heart of indivisible 
freedoms because it aims to provide one set of religious practices 
preferential treatment under the law vis-a-vis all other religious 
practices.
    Specifically, the ACLU proposes to provide WRFA protection to 
requests to accommodate religious holy day, garb and grooming 
requirements. This limited bill would exclude all other religious 
practices from coverage. Among the wide range of religious practices 
that would be excluded under the ACLU restricted bill are: \18\
     A Jehovah's Witness employee who requests to opt out of 
raising the flag and pledging allegiance at work;
     A Methodist attorney who requests accommodation not to 
represent tobacco interests;
     A Quaker (Society of Friends) employee who requests to be 
transferred to non-military related accounts;
     An Orthodox Jewish woman who requests permission not to 
shake the hands of male customers;
     A Hindu employee who requests permission not to greet 
guests with the phrase ``Merry Christmas;''
     A Christian employee who requests to be assigned to work 
that does not involve embryonic research;
     A Muslim hospital employee who requests to be exempted 
from duty in which she would be present when a member of the opposite 
sex is unclothed;
     A Christian webpage developer who asks to be reassigned 
from a pornographic website development project;
     A Muslim truck driver who requests to be assigned to 
routes that do not involve delivering alcoholic beverages.
    These are just a few of the uncovered religious claims, and do not 
include claims that arise from indigenous faiths, many major Eastern 
religions and the wide variety of claims arising from the diverse 
branches of Christianity. To understand the weakness of the restricted 
approach, it is worth considering sample claims post-passage of the 
ACLU's restricted WRFA:
    Post-passage of a restricted WRFA, if an Evangelical Christian 
delivery driver requests her employer to accommodate her sincerely held 
religious conviction to attend church on Sunday, her claim would be 
analyzed under the WRFA significant difficulty or expense standard. If 
a Muslim delivery driver working for the same company asked the same 
employer to accommodate her sincerely held religious conviction that 
requires her not to delivery alcoholic beverages, her claim would be 
analyzed under the existing de minimis difficulty or expense standard. 
As such, the Muslim employee would be much more likely to lose even if 
the two accommodation requests presented precisely the same challenge 
to accommodate. It is difficult to understand how anyone could believe 
such disparate treatment is a just outcome.
    Further, it is unclear whether such disparate treatment could 
withstand constitutional scrutiny under either the Equal Protection or 
the Establishment Clauses.
    In defense of their restricted proposal, critics note that the 
religious practices covered constitute the majority of claims made in 
reported Title VII cases over the past three decades. This defense is 
faulted in two ways.
    First, a bill that protects the majority of claims is hardly 
justification for disfavoring minority religious practices.
    Second, it assumes that future accommodation claims will mirror the 
past. This is a deeply faulted assumption. America's religious 
demographics are changing dramatically. As immigrants from Asia, 
Africa, the Pacific and other areas of the world come to the United 
States, they bring their religious practices with them. It is very 
likely that prospectively, we will see far more claims from these faith 
communities as they become established in America. We cannot afford to 
exclude religious practices from protection simply because they were 
not prevalent in the U.S. during the 70s and 80s. Indeed, as we go 
forward, newer faith communities are likely to need the protection of 
WRFA at least as much--if not more than--established communities.
    Disparate treatment is something the ACLU has stood against in the 
past on issues ranging from free speech to religious liberty. Sadly, 
they have abandoned their core values and in the process are acting in 
a manner counter productive to the liberties they claim to protect. 
Criticism of WRFA is unjustified by the facts, and the proposed 
``solution'' is deeply unjust and likely unconstitutional.
Conclusion
    Losing employment is not an insignificant event. Loss of a job can 
have the most dire impact on a family emotionally, financially, and in 
their relationships. In recognition of this, our laws have been crafted 
carefully to protect the disabled, for example, from dismissal without 
efforts being made to accommodate their needs. And this Congress passed 
the Employment Non-Discrimination Act to protect gay, lesbian and 
bisexual employees. It is not too much to ask from a nation founded on 
the principles of religious freedom for people of faith to be accorded 
the same respect.
    Rather than succumb to the irrational objections of WRFA critics. 
It is vital that Congress address this very real, well documented 
problem. Americans from all religious faiths need protection. WRFA 
provides a modest level of protection to ensure that American workers 
are no longer arbitrarily forced to choose between their faith and 
their livelihood.
    Today, on behalf of the Seventh-day Adventist Church and on behalf 
of the religious community writ large, I urge each member of the 
subcommittee to support WRFA's passage through the House of 
Representatives and into law. Enough American workers have been 
humiliated and marginalized for no crime other than remaining faithful 
to their understanding of God's requirements. Our national values and 
our common humanity dictate that we provide the modest, commonsense 
protection encapsulated in WRFA--and that we delay no longer.
                                endnotes
    \1\ James Standish is director of legislative affairs for the world 
headquarters of the Seventh-day Adventist Church. He earned his law 
degree, cum laude, from Georgetown University, his MBA from the 
University of Virginia, and his BBA from Newbold College, England.
    \2\ There are 29 Seventh-day Adventist hospitals in sub-Saharan 
Africa, and these hospitals are complemented by a number of Adventist 
clinics and dispensaries. In total, these facilities accounted for 
62,912 inpatient admissions, and 1,601,950 outpatient visits in 2004. 
More than 50% of the patients served in these facilities are HIV 
positive.
    \3\ Exodus 20:8--11 (NKJV): ``Remember the Sabbath day, to keep it 
holy. Six days you shall labor and do all your work, but the seventh 
day is the Sabbath of the LORD your God. In it you shall do no work: 
you, nor your son, nor your daughter, nor your male servant, nor your 
female servant, nor your cattle, nor your stranger who is within your 
gates. For in six days the LORD made the heavens and the earth, the 
sea, and all that is in them, and rested the seventh day. Therefore the 
LORD blessed the Sabbath day and hallowed it.''
    \4\ 42 U.S.C. Sec.  2000e(j). (Employers have a duty to accommodate 
an employee's religious practices as long as they can ``reasonably 
accommodate'' the practices and the accommodation does not cause 
``undue hardship'' on the employer's business.)
    \5\ Trans World Airlines, Inc v. Hardison, 432 U.S. 63, 84 (1977). 
(Accommodation of religious beliefs requiring more than a de minimis 
cost to the employer normally results in ``undue hardship'' and 
therefore is not required by current law.)
    \6\ For more on the history of the accommodation provision of Title 
VII, please see Exhibit B at the conclusion of this testimony.
    \7\ Sturgill v. UPS, 2008 WL 123945 (8th Cir. Jan. 15, 2008) 
(``What is reasonable depends on the totality of the circumstances and 
therefore might, or might not, require elimination of a particular, 
fact-specific conflict.'' Slip Opinion at 6.).
    \8\ Exhibit C at the conclusion of this testimony contains a year-
by-year analysis of religious and race based discrimination receipts 
received by the U.S. EEO.
    \9\ See Exhibit C.
    \10\ See Exhibit C.
    \11\ Workplace Religious Freedom Act, Section 2 (``* * * the term 
`undue hardship' means an accommodation requiring significant 
difficulty or expense.'').
    \12\ Workplace Religious Freedom Act, Section 2 ( ``* * * for an 
accommodation to be considered to be reasonable, the accommodation 
shall remove the conflict between employment requirements and the 
religious observance or practice of the employee.'').
    \13\ A majority of cases did not go to litigation.
    \14\ Acts 5:29 (NIV).
    \15\ See, e.g., United States v. Seeger, 380 U.S. 163 (1965).
    \16\ New York State Division of Human Rights
    \17\ Eliot Spitzer, ``Defend the Civil Right to Freedom of Religion 
for America's Workers,'' The Forward, June 25, 1990, at 1, 7. http://
www.forward.com/main/article.php?ref= spitzer200406241125
    \18\ List compiled by the Coalition for Freedom of Religion in the 
Workplace.
                                 ______
                                 
    Chairman Andrews. Mr. Standish, thank you. And thanks for 
showing us that picture, too. That made us all----
    Mr. Standish. Cannot resist.
    Chairman Andrews. Before we go to Professor Norton, I 
wanted to just comment that I know that our three scholarly 
witnesses have made a tremendous contribution to this 
discussion, and we appreciate that very, very much.
    I will just pause for a moment after the last three 
witnesses, and this is record that we would like the world to 
see about the real meaning of religious diversity in our 
country.
    You know, this is a country that was founded a very long 
time ago by people who worshipped under the rules of the Church 
of England and people who worshipped under some religions that 
followed Martin Luther and his views. That is sort of the only 
folks that were here, other than the Native Americans, hundreds 
of years ago.
    And they derived a system that yielded today where we have 
three people, very articulate, very passionate, very sincere, 
from three very different religious traditions, each of which 
is respected. We are having a debate today about how that 
respect should be manifested in the law.
    But for those who would doubt the country's true devotion 
to religious diversity, I would like them to hear the three of 
you just testify. I think it was moving. It was terrific, and 
we are very glad that you were here.
    Professor Norton?

    STATEMENT OF HELEN NORTON, ASSOCIATE PROFESSOR OF LAW, 
                     UNIVERSITY OF COLORADO

    Ms. Norton. Thank you.
    I hope to accomplish three objectives with my testimony 
here today: first, to explain my support for H.R. 1431's 
overarching goal of amending Title VII to provide greater 
protections for workers' religious practices for the reasons 
that the witnesses before me have already very eloquently 
identified; second, however, also to note my concern that the 
language as drafted may create significant conflicts with other 
persons' important civil and reproductive rights; and then 
finally, to suggest some possible approaches for resolving 
those concerns.
    As a number of witnesses have noted, as a result of the 
Supreme Court's very broad interpretation of ``undue hardship'' 
under Title VII. employee requests for religious accommodation 
are too often denied, even when they impose only modest costs, 
and for this reason, amendment to Title VII to restore 
Congress's original intent to create a meaningful right to 
reasonable accommodation is long overdue.
    But while I fully support H.R. 1431's underlying purpose in 
this regard, I note my significant concern that the proposal, 
as currently drafted, may lead to new and different outcomes in 
cases where requested accommodations conflict with other 
persons' important civil and reproductive rights. Although the 
majority of requested accommodations will not pose difficulties 
of this sort, the Title VII experience to date indicates that 
some requested accommodations will conflict with coworkers' 
antidiscrimination interests or patients' health care needs.
    And these are very difficult issues because they involve 
direct clashes between interests that are protected by Title 
VII as well as under other constitutional and legal rights. 
These concerns are especially acute given that Congress is 
considering amending one of our nation's most important civil 
rights laws.
    And to be sure, the plaintiffs' beliefs in these cases are 
no less sincere and deeply felt than in any others. These cases 
are different and difficult instead because of the requested 
accommodations' effect on third parties' civil rights, 
religious liberties, reproductive rights, or other important 
health care needs.
    Under current law, for example, lower courts have 
consistently held that employers are not required to 
accommodate health care workers' religiously motivated requests 
to decline to dispense contraceptives or provide other health 
care services for religious reasons when those requests result 
in delay in or disruption to the delivery of health care 
services.
    Similarly, under current law, lower courts have 
consistently concluded that police officers' religiously 
motivated requests to decline certain assignments, such as 
enforcing the law with respect to disruptions at reproductive 
health care clinics, pose an undue hardship.
    Nor have lower courts under the current Title VII standard 
required employers to accommodate workers whose religious 
beliefs compel them to urge the conversion of those with 
contrary beliefs or behaviors in a way that may not only offend 
the beliefs of others, but may also undermine an employer's 
antidiscrimination policies, as is the case where a worker 
seeks the accommodation being permitted to condemn 
homosexuality as immoral to coworkers or to patients, despite 
an employer's antidiscrimination policy.
    Each of these cases was decided under the current Title VII 
standard. Without clarification, we cannot be confident that 
the substantial changes proposed by H.R. 1431 would not alter 
the outcome in these cases. Several factors create this 
uncertainty
    First, H.R. 1431 proposes a new and more rigorous 
understanding of undue hardship for Title VII purposes, drawing 
largely from the ADA's narrower definition of undue hardship. 
The ADA's undue hardship standard reflects Congress's judgment 
that the need to expand employment opportunities for workers 
with disabilities by providing accessible facilities and other 
accommodations justifies the imposition of some economic cost 
on employers so long as that cost falls short of significant 
difficulty and expense.
    But some of the religious accommodations at issue here 
impose costs most directly on other coworkers or patients and 
may or may not impose monetary costs on employers. As a result, 
without clarification, it remains uncertain how the ADA 
understanding of undue hardship will apply to conflicts with 
other persons' civil rights or health care needs.
    Adding to this uncertainty is the fact that while H.R. 1431 
draws from the ADA factors, it does not track them precisely, 
and, if anything, it appears to focus even more narrowly on the 
employer's monetary costs as the measure of undue hardship.
    So, again, without clarification, these changes may well 
result in different outcomes in cases involving conflicts with 
other workers' civil rights or patients' important health care 
needs.
    I will conclude by suggesting very briefly two possible 
approaches to resolving these concerns. First, H.R. 1431's 
definition of ``undue hardship'' could be amended to expressly 
make clear that accommodations that impose an undue hardship 
include practices that conflict with employers' legally 
mandated or voluntarily adopted antidiscrimination requirements 
or that delay or disrupt the delivery of health care services.
    Alternatively, Congress could require employers to provide 
the most frequently requested accommodations--and those that do 
not create conflicts of this sort--unless it can show that the 
accommodation would pose an undue hardship as rigorously 
defined under H.R. 1431, and those accommodations include time 
off or scheduling changes to observe the Sabbath, as Ms. 
Goldstein described, or requests for departures from uniform 
appearance standards with respect to religious apparel or 
grooming, as Ms. Al-Suwaij described.
    In short, while I fully agree that Congress should amend 
Title VII to expand the circumstances under which employers 
must accommodate employees' religious practices, it should not 
do so in a way that conflicts with others' civil and 
reproductive rights.
    Thank you.
    [The statement of Ms. Norton follows:]

Prepared Statement of Helen Norton, Associate Professor, University of 
                         Colorado School of Law

    Thank you for the opportunity to testify here today. My testimony 
draws from my work as a law professor teaching and writing about 
constitutional law and employment discrimination issues, as well as my 
experience as a Deputy Assistant Attorney General for Civil Rights in 
the Department of Justice during the Clinton Administration, where my 
duties included supervising the Civil Rights Division's Title VII 
enforcement efforts.
    I hope to accomplish three objectives with my testimony here today: 
1) to explain my support for H.R. 1431's overarching goal of amending 
Title VII to provide greater protections for workers' religious 
practices; 2) to express concern, however, that the language as drafted 
may create significant conflicts with other persons' important civil 
and reproductive rights; and 3) to suggest some possible approaches for 
resolving those concerns.
    As originally enacted in 1964, Title VII simply barred employers 
from firing, refusing to hire, or otherwise taking adverse action 
against an employee because of his or her religion--as well as his or 
her race, color, sex, or national origin. But it soon became clear that 
more was needed to ensure equal employment opportunity for workers on 
the basis of religion, and Congress thus amended Title VII in 1972 to 
require expressly that employers reasonably accommodate an employee's 
religious practice unless the accommodation would pose an undue 
hardship to the employer's business.
    Indeed, Congress amended Title VII in 1972 in direct response to 
courts' refusal to require employers to accommodate workers' scheduling 
requests that would allow them to observe their Sabbath. Senator 
Randolph, the sponsor of the amendment, highlighted the plight of 
workers ``whose religious practices rigidly require them to abstain 
from work in the nature of hire on particular days.'' \1\ In 
particular, he explained the need to correct lower court decisions 
upholding the firing of workers who could not work on the Sabbath.\2\
    Shortly after the amendment's enactment, however, in a case 
involving a worker's request for a shift change to accommodate his 
observance of the Sabbath, the Supreme Court defined the term ``undue 
hardship'' to mean that an employer is not required to incur more than 
``a de minimis cost'' when accommodating an employee's religious 
practice.\3\ As a practical matter, this interpretation robbed the 1972 
amendment of much of its impact: under this standard, an employer need 
show very little cost to avoid accommodating an employee's observance 
of the Sabbath or other religious practice.\4\
    As a result of the Court's very broad interpretation of undue 
hardship, employee requests for religious accommodations are too often 
denied even if they impose only modest costs. An amendment to Title VII 
to restore Congress' original intent to create a meaningful right to 
reasonable accommodation is thus long overdue.
    But while I fully support H.R. 1431's underlying purpose in this 
regard, I note my significant concern that the proposal, as currently 
drafted, may lead to new and different outcomes in cases where 
requested accommodations conflict with other persons' important civil 
and reproductive rights. Although the majority of requested 
accommodations--including, but not limited to, requests for shift 
changes or leave for religious observances, or departures from 
workplace appearance policies to accommodate religious practices with 
respect to apparel and grooming \5\--will not pose difficulties of this 
sort, the Title VII experience to date indicates that some requested 
accommodations will conflict with co-workers' antidiscrimination 
interests or patients' health care needs.
    Justice Thurgood Marshall wrote a powerful dissent: Today's 
decision deals a fatal blow to all efforts under Title VII to 
accommodate work requirements to religious practices. The Court holds, 
in essence, that although the EEOC regulations and the Act state that 
an employer must make reasonable adjustments in his work demands to 
take account of religious observances, the regulations and Act do not 
really mean what they say. An employer, the Court concludes, need not 
grant even the most minor special privilege to religious observers to 
enable them to follow their faith. As a question of social policy, this 
result is deeply troubling, for a society that truly values religious 
pluralism cannot compel adherents of minority religions to make the 
cruel choice of surrendering their religion of their job. And as a 
matter of law today's result is intolerable, for the Court adopts the 
very position that Congress rejected in 1972, as if we were free to 
disregard congressional choices that a majority of this Court thinks 
unwise. Id. at 86-87 (Marshall, J., dissenting).
    These are very difficult cases because they involve direct clashes 
between interests that are protected by Title VII and other 
constitutional and legal rights. These concerns are especially acute 
given that Congress is considering amendments to one of our nation's 
most important civil rights laws, and they thus deserve very careful 
attention. To be sure, the plaintiffs' religious beliefs in these cases 
are no less sincere and deeply felt than those in any others. These 
cases are different instead because of the requested accommodations' 
effect on third parties' civil rights, religious liberties, 
reproductive rights, and other important health care needs.\6\
    And those effects can be extremely significant. Examples include 
patients who experience delays in or disruptions to health care 
services if health care workers decline for religious reasons to 
dispense contraceptives, decline to assist in performing sterilization 
procedures, or decline to counsel cancer patients seeking information 
about harvesting eggs or sperm. Other examples include police officers 
who, for religious reasons, decline to enforce laws regarding civil 
disturbances at reproductive health care clinics, or workers in a 
variety of jobs whose religious beliefs compel them to urge the 
religious conversion of those with contrary beliefs or behaviors in a 
way that may not only offend the beliefs of others, but also undermine 
an employer's antidiscrimination policies.
    Under the current Title VII interpretation of undue hardship, 
employers need not provide accommodations that create conflicts of this 
type when they impose more than a de minimis cost. But without 
clarification, we cannot be confident that the substantial changes 
proposed by H.R. 1431 would not alter the outcome in these cases.
    Under current law, for example, lower courts have consistently held 
that a health care worker's religiously-motivated request to decline to 
dispense contraceptives or to provide other health care services poses 
an undue hardship when it results in delay or disruption to health care 
services, even when the employee argues that the accommodation is the 
only one that can remove the conflict with his or her religious 
beliefs.\7\ For instance, in Grant v. Fairview Hospital,\8\ an 
ultrasound technician for a women's health clinic held religious 
beliefs that required him to counsel pregnant women against having an 
abortion if he became aware that they were contemplating the 
possibility. His employer agreed that the employee did not have to 
perform ultrasound examinations on women contemplating abortion, and 
proposed that he leave the room once he found that a patient was 
considering that possibility. It refused, however, to allow him to 
counsel such patients against having abortions. Even though the 
employer's proposal did not eliminate the conflict entirely--the 
plaintiff felt religiously compelled to provide counseling to women who 
told him they were considering abortions--the court found that the 
accommodation was reasonable because it reflected the employer's good-
faith negotiation and compromise that resulted in a change that 
considered both employee and employer concerns.
    Others courts have reached similar conclusions under current law. 
In Noesen v. Medical Staffing Network/Wal-Mart,\9\ for example, in 
response to the plaintiff pharmacist's refusal to dispense 
contraceptives for religious reasons, the employer ensured that another 
pharmacist remained available during the plaintiff's shift to fill 
prescriptions and answer customers' questions about birth control. The 
court ruled that the employer satisfied its duty of reasonable 
accommodation by excusing the plaintiff from filling contraceptive 
prescriptions, even though the plaintiff argued that the only way to 
remove the conflict with his religious beliefs would be to relieve him 
of all counter and telephone duties that might require him to interact 
with a customer seeking birth control.
    Similarly, under current law lower courts have consistently 
concluded that police officers' religiously-motivated requests to 
decline certain assignments--such as enforcing the law with respect to 
disturbances and disruptions at reproductive health care clinics--pose 
an undue hardship to the law enforcement mission. In Rodriguez v. City 
of Chicago, for example, the plaintiff police officer declined an 
assignment to provide security at abortion clinics for religious 
reasons. The Seventh Circuit found that the employer had satisfied its 
obligation to provide a reasonable accommodation through the 
availability of a transfer--without any loss in pay or benefits--to 
another district without an abortion clinic. The court held that the 
employer was not required to remove the conflict by providing the 
employee's preferred accommodation, which was to remain in his current 
district while declining clinic duty.\10\ In a concurring opinion, 
Judge Posner agreed that this employer had provided a reasonable 
accommodation, but noted that he preferred a rule making clear under 
Title VII that a request by a law enforcement officer to refuse an 
assignment always poses an undue hardship, because of the ``loss of 
public confidence in governmental protective services if the public 
knows that its protectors are at liberty to pick and choose whom to 
protect.'' The Seventh Circuit later adopted Judge Posner's view as a 
matter of Title VII law in Endres v. Indiana State Police.\11\
    Nor have lower courts, under the current Title VII standard, 
required employers to accommodate workers whose religious beliefs 
compel them to urge the religious conversion of those with contrary 
beliefs or behaviors, in a way that may not only offend the beliefs of 
others but also undermine an employer's antidiscrimination policies. 
For example, in Peterson v. Hewlett-Packard, the Ninth Circuit declined 
to require the employer to adopt the plaintiff's proposed accommodation 
where the plaintiff contended that only way to remove the conflict 
between Hewlett-Packard's diversity campaign and his religious beliefs 
would be either to require HP to remove its posters (featuring a photo 
of an HP employee above the caption ``Gay,'' along with a description 
of the pictured employee's personal interests and the slogan 
``Diversity is our Strength'') or to allow him to display his 
concededly ``hurtful'' messages condemning homosexuality in hopes of 
changing others' behavior.\12\
    Each of these cases was decided under current Title VII law. 
Without clarification, their outcome under H.R. 1431's proposed new 
standard remains uncertain.
    Several factors create this uncertainty. First, H.R. 1431 proposes 
a new and more rigorous understanding of undue hardship for Title VII 
purposes, drawing from the Americans with Disabilities Act's (ADA) 
narrower definition of undue hardship to mean ``an action requiring 
significant difficulty or expense.'' \13\ The ADA then identifies a 
number of factors to be considered when determining whether a proposed 
accommodation requires significant difficulty or expense; these factors 
focus on the requested accommodation's net monetary cost to 
employer.\14\ The ADA's undue hardship standard reflects Congress' 
judgment that the need to expand employment opportunities for workers 
with disabilities by providing accessible facilities and other 
accommodations justifies the imposition of some economic cost on 
employers so long as that cost falls short of significant difficulty 
and expense.\15\ But some of the religious accommodations at issue here 
impose costs most directly on other co-workers or patients and may or 
may not impose monetary costs to employers. As a result, without 
clarification, it remains uncertain how the ADA understanding of undue 
hardship will apply to conflicts with other persons' civil rights or 
health care needs.\16\
    Adding to this uncertainty is the fact that while H.R. 1431 draws 
from the ADA factors to be considered when determining undue hardship, 
it does not track them precisely. If anything, H.R. 1431 appears to 
focus even more narrowly on the employer's monetary costs as the 
measure of undue hardship. For example, H.R. 1431 as proposed requires 
consideration of ``the identifiable cost of the accommodation, 
including the costs of loss of productivity and of retraining or hiring 
employees or transferring employees from 1 facility to another.'' \17\ 
In contrast, the ADA more broadly requires consideration of ``the 
nature and cost of the accommodation needed.'' \18\ Again, the effect 
of these changes remains unclear when applied to accommodations that 
conflict with third parties' civil and reproductive rights.
    Adding further still to this uncertainty is H.R. 1431's provision 
that:
    For purposes of determining whether an employer has committed an 
unlawful employment practice under this title by failing to provide a 
reasonable accommodation to the religious observance or practice of an 
employee, for an accommodation to be considered to be reasonable, the 
accommodation shall remove the conflict between employment requirements 
and the religious observance or practice of the employee.\19\
    But the holdings in cases under current law involving conflicts 
with third parties' civil and reproductive rights frequently rest on 
courts' conclusion that an employer's accommodation need not completely 
remove the conflict with the employee's religious beliefs to be 
considered reasonable. Indeed, in many of these cases, the only way 
truly to remove the conflict with the employee's sincerely-held 
religious beliefs is for the employer to stop providing certain health 
care services that the employee finds inconsistent with his faith or 
for the employer to permit the employee to engage in religiously-
compelled witnessing or proselytizing activities regardless of the 
effect on others' beliefs or the employer's antidiscrimination 
policies. Again, without clarification, this change in the law may well 
result in different outcomes in cases involving conflicts with other 
workers' civil rights or patients' important health care needs.
    There appear to be at least two possible approaches to resolving 
these concerns. One possible solution would revise H.R. 1431's 
definition of ``undue hardship'' to expressly provide that 
accommodations that impose an undue hardship include practices that 
conflict with employers' legally-mandated or voluntarily-adopted 
antidiscrimination requirements or that delay or disrupt the delivery 
of health care services.
    Another approach might require an employer to accommodate the most 
frequently-requested accommodations--and those that do not create 
conflicts of the sort described above--unless it can show that the 
accommodation would pose an undue hardship as rigorously defined under 
H.R. 1431 as proposed. These accommodations include scheduling and 
leave requests to observe the Sabbath or religious holidays, as well as 
requests for departures from uniform appearance standards to 
accommodate religious practices with respect to apparel and grooming. 
Other types of accommodation requests would continue to receive the 
protections available under Title VII's current standard--employers 
are, and would continue to be, required to provide such accommodations 
unless doing so poses more than a de minimis hardship.
    In short, while I fully agree that Congress should amend Title VII 
to expand the circumstances under which employers must accommodate 
employees' religious practices, it should do so in a way that does not 
conflict with others' civil and reproductive rights. Again, thank you 
for the opportunity to testify here today. I look forward to your 
questions.
                                endnotes
    \1\ 118 Cong. Rec. at 705 (1972).
    \2\ See id. at 705-06 (1972) (statement of Sen. Randolph) 
(``Unfortunately, the courts have, in a sense, come down on both sides 
of the issues. The Supreme Court of the United States, in a case 
involving the observance of the Sabbath and job discrimination, divided 
evenly on this question. This amendment is intended * * * to resolve by 
legislation--and in a way that I think was originally intended by the 
Civil Rights Act--that which the courts apparently have not 
resolved.''); see also 118 Cong. Rec. 706-13 (1972) (reprinting two 
lower court cases as examples of decisions to be reversed by the 
proposed amendments:
    Dewey v. Reynolds Metals Co., 429 F.2d 324 (6th Cir. 1970), aff'd 
by an equally divided Court, 402 U.S. 689 (1971) (finding no Title VII 
requirement that an employer accommodate employees' religious 
observance and upholding the firing of an employee who declined to work 
on Sundays for religious reasons) and Riley v. Bendix Corp., 330 F. 
Supp. 583 (M.D. Fla. 1971) (same).
    \3\ Trans World Airlines v. Hardison, 432 U.S. 63, 85 (1977) (``To 
require TWA to bear more than a de minimis cost in order to give 
Hardison Saturdays off is an undue hardship.'').
    \4\ Indeed, according to Black's Law Dictionary, the term ``de 
minimis'' means ``trifling,'' ``minimal,'' or ``so insignificant that a 
court may overlook it in deciding a case or issue.'' BLACK'S LAW 
DICTIONARY (Seventh Edition).
    \5\ Justice Marshall's list in Hardison of the most common types of 
accommodation requests remains largely accurate today: ``In some of the 
reported cases, the rule in question has governed work attire; in other 
cases it has required attendance at some religious functions; in still 
other instances, it has compelled membership in a union; and in the 
largest class of cases, it has concerned work schedules.'' 432 U.S. at 
87.
    \6\ Note too that these concerns arise only with respect to 
requested accommodations--i.e., requests that an employer depart from 
its religiously neutral policies to accommodate a religious practice, 
observance, or other behavior. An employer may not fire, refuse to 
hire, or otherwise target an employee for an adverse employment action 
because of that employee's beliefs, no matter how unfamiliar or even 
disagreeable the employer may consider those beliefs. See, e.g., 
Buonanno v. AT&T Broadband, 313 F. Supp. 2d 1069 (D. Colo. 2004) 
(holding that Title VII does not permit employer to fire employee who 
declined to sign diversity policy requiring him to affirm that he 
``value[d]'' all differences when his religious beliefs held that some 
behaviors and beliefs are sinful); Peterson v. Wilmur Communications, 
Inc., 205 F. Supp. 2d 1014 (E.D. Wis. 2002) (holding that Title VII 
does not permit employer to demote employee upon learning of employee's 
religiously-motivated belief in white supremacy).
    \7\ On the other hand, of course, if accommodating a health care 
worker's request would not delay or disrupt the provision of health 
care services, it would not pose an undue hardship.
    \8\ 2004 WL 326694 (D. Minn. 2004).
    \9\ 232 Fed. Appx. 581 (7th Cir. 2007); see also Shelton v. 
University of Medicine & Dentistry of New Jersey, 223 F.3d 220 (3rd 
Cir. 2000) (holding that the employer hospital satisfied its obligation 
to provide a reasonable accommodation to a staff nurse whose religious 
beliefs ``forbade her from participating directly or indirectly in 
ending a life'' when it offered to transfer her to a position that did 
not involve abortions or sterilizations).
    \10\ 156 F.3d 771 (7th Cir. 1998); see also Parrott v. District of 
Columbia, 1991 WL 126020 *3 (D.D.C. 1991) (``Title VII's guarantee of 
de minimis accommodation does not contemplate the type of dispensation 
Sergeant Parrott requests from the police force''--i.e., to be exempted 
from enforcing law regarding civil disturbances and demonstrations at 
abortion clinics).
    \11\ 349 F.3d 922 (2003) (holding that the state police had no duty 
to accommodate a police officer's request that he be allowed to refuse 
assignment to a casino for religious reasons).
    \12\ 358 F.3d 599, 606-08 (9th Cir. 2004).
    \13\ 42 U.S.C. Sec.  12111(10) (A).
    \14\ 42 U.S.C. Sec.  12111(10) (B) of the ADA identifies these 
factors as follows: ``(i) the nature and cost of the accommodation 
needed under this chapter; (ii) the overall financial resources of the 
facility or facilities involved in the provision of the reasonable 
accommodation; the number of persons employed at such facility; the 
effect on expenses and resources, or the impact otherwise of such 
accommodation upon the operation of the facility; (iii) the overall 
financial resources of the covered entity; the overall size of the 
business of a covered entity with respect to the number of its 
employees; the number, type, and location of its facilities; and (iv) 
the type of operation or operations of the covered entity, including 
the composition, structure, and functions of the workforce of such 
entity; the geographic separateness, administrative, or fiscal 
relationship of the facility or facilities in question to the covered 
entity.''
    \15\ 42 U.S.C. Sec.  12111(9) of the ADA provides that ``[t]he term 
`reasonable accommodation' may include--
    (A) making existing facilities used by employees readily accessible 
to and usable by individuals with disabilities; and
    (B) job restructuring, part-time or modified work schedules, 
reassignment to a vacant position, acquisition or modification of 
equipment or devices, appropriate adjustment or modifications of 
examinations, training materials or policies, the provision of 
qualified readers or interpreters, and other similar accommodations for 
individuals with disabilities.''
    \16\ As written, H.R. 1431 creates a duty of reasonable 
accommodation only with respect to employees or applicants for 
employment who can perform the ``essential functions'' of the job with 
or without reasonable accommodation, leaving employers free to argue 
that the inability to perform certain duties for religious reasons 
means that that employee cannot perform the job's essential functions. 
But the bill goes on to provide that ``the ability to perform essential 
functions'' should not be considered compromised by ``practices that 
may have a temporary or tangential impact on the ability to perform job 
functions.'' H.R. 1431, section 2(a). Without clarification, it is 
difficult to predict with confidence the meaning of ``temporary or 
tangential impact.'' For example, would it require accommodation of a 
pharmacist's request to decline to dispense contraceptives if such 
contraceptives constitute only a small percentage of the pharmacy's 
sales, or a nurse's request to decline to assist in performing tubal 
ligations or vasectomies if such surgeries constitute only a small 
percentage of a hospital's health care services?
    \17\ H.R. 1431, section 2(a). H.R. 1431 goes on to identify a 
shorter and arguably narrower list of additional factors to be 
considered in determining undue hardship for Title VII purposes as 
compared to the ADA undue hardship factors listed above in note 14: 
``(B) the overall financial resources and size of the employer 
involved, relative to the number of its employees; and (C) for an 
employer with multiple facilities, the geographic separateness or 
administrative or fiscal relationship of the facilities.''
    \18\ 42 U.S.C. Sec.  12111(10) (B) (i).
    \19\ H.R. 1431, section 2(b) (emphasis added).
                                 ______
                                 
    Chairman Andrews. Well, thank you, Professor.
    And thank you, ladies and gentlemen, for an excellent 
series of testimonies.
    We are going to now go to questions.
    I want to focus on one of the hypotheticals that Mr. 
Standish raised, and I am going to embellish it a little bit. 
Say, we have a trucking company that has 100 drivers, and the 
trucking company serves any number of routes--to grocery 
stores, to retail outlets, and to some liquor stores--and the 
trucking company employs a devout Muslim who requests not to be 
assigned to drive the routes delivering liquor for religious 
reasons.
    Mr. Gray, as you understand the present interpretation of 
Title VII, if the employer denied that accommodation and the 
employee sued, would the employee win or lose that suit to 
force the accommodation?
    Mr. Gray. I think your example, Mr. Chairman, would depend 
on some further facts.
    Chairman Andrews. What would you want to know?
    Mr. Gray. I would want to know what other route drivers 
would be available to pick up that route.
    Chairman Andrews. All right. Let us say that there would be 
at least five or 10 others who could do the same route without 
any significant disruption.
    Mr. Gray. I think with that, there is a significant chance 
that that accommodation, I think, stands.
    Chairman Andrews. Do you think it is clear that it does?
    Mr. Gray. Well, I think that depends on the facts, and I 
think it would take more facts than we have time to go into.
    Chairman Andrews. Well, good lawyers can disagree. You are 
one. I am probably not. My own interpretation, as I read the de 
minimis standard, is the employee loses, and I think that is 
what it says, and----
    Mr. Gray. Well, I think, Mr. Chairman, if you look at 
Hardeson and then look at the cases interpreting Hardeson--we 
could take the Sturgill case that just came out from the Eighth 
Circuit--it----
    Chairman Andrews. The UPS driver?
    Mr. Gray [continuing]. Is not as de minims--it may be a bad 
choice of terms--not as small as the Hardeson case chose to 
characterize it.
    Chairman Andrews. But if go to one of the points Mr. 
Standish made, there is a good chance that this truck driver 
employee is going to need a contingency lawyer to bring his 
claim, and with that degree of uncertainty about the outcome, 
it is going to be very difficult to get representation.
    I want to go to Professor Norton and ask her this question: 
If we were to adopt one of your two alternatives to the bill 
before the committee, which, as I understand it, would specify 
a higher level of protection for scheduling issues and for 
dress issues, appearance issues, would the plaintiff win under 
your proposed alternative or not?
    Ms. Norton. Your trucking plaintiff?
    Chairman Andrews. Yes.
    Ms. Norton. Right. Well, the first question is what is the 
cost, and, as you pointed out, if the employer can identify 
anything more than de minimis cost, minimal or trifling cost, 
that employee is at risk of losing the case, which is one 
reason you may want to go to a non-targeted approach.
    Chairman Andrews. In other words, the short answer is you 
do not know, but there is a pretty good risk the employee would 
lose the case? Is that what you said?
    Ms. Norton. Right, depending on what the answer is to what 
the cost is.
    Chairman Andrews. Let me go to another one of Mr. 
Standish's hypotheticals.
    First of all, do you agree, Mr. Standish, that under the 
trucking-liquor example that the Muslim employee would lose 
under present law?
    Mr. Standish. I do. I am a lawyer myself, and I would love 
to be the person handling the company side of that claim 
because if you cannot come up with, you know, above a de 
minimis customer inconvenience for just about anything, you are 
just really not trying. If you went to a targeted approach, 
though----
    Chairman Andrews. How about this, though? How about an 
Orthodox Jewish person goes to work in a Wal-Mart, and she is 
assigned to be the Wal-Mart greeter, and she declines to shake 
hands, because of her religious faith and religious tradition, 
with people as they come in, and she says, ``Well, look, I will 
work in the shoe department. I will work in the clothing 
department, appliances, whatever, but I just do not want to be 
the greeter because it does require me to shake people's 
hands.''
    Mr. Standish, do you think that she wins or loses that case 
under present law?
    Mr. Standish. I think that that, once again, could be a 
close call depending on what their other staffing requirements 
are and what her skills are.
    Chairman Andrews. Wal-Marts typically have hundreds of 
employees, and I would think that there would be plenty of 
people to be the greeter.
    Mr. Gray, do you think the plaintiff wins or loses that 
case under present law?
    Mr. Gray. Without sounding too much like a lawyer, Mr. 
Chairman, I am not----
    Chairman Andrews. Go ahead.
    Mr. Gray [continuing]. Sure I want to comment on if that is 
a particular case or with Wal-Mart in particular, but if I 
took----
    Chairman Andrews. Well, let us say a store that employs 
greeters that has a big W in front of its name and----
    [Laughter.]
    Mr. Gray. Fair enough. I think it goes to the cost. I think 
Professor Norton talked about it. The problem, actually, under 
the proposed legislation is the current test, Mr. Chairman, 
involves a balancing test, and what we are seeing in the work 
place is the company and the employees often are getting it 
done without having to go to plaintiffs' lawyers.
    Chairman Andrews. But under Ms. McCarthy's bill, would not 
the retailer who will go nameless have a burden of showing 
there is some substantial cost, and I do not think they could 
do that in a case where there are hundreds of other employees, 
any of whom could be the greeter, and reassigning the woman in 
question to another department where she did not have to shake 
hands would be a pretty easy thing to do. Don't you think the 
retailer would lose the case under Ms. McCarthy's bill?
    Mr. Gray. Well, yes. I think under the bill, Mr. Chairman, 
if you cannot point to an identifiable cost--that is a term 
that I think is going to get us into a lot of trouble down the 
line. Now the current standard, I think, gives a more give-and-
take and allows you to sort of delve into the facts.
    Chairman Andrews. I agree with that, although I think a lot 
of us think it is more take than give when it comes to 
religious rights, which is why we feel strongly about this.
    But I thank you very much. I appreciate all these good 
lawyers answering these questions.
    I recognize Mr. Kline for 5 minutes.
    Mr. Kline. Thank you, Mr. Chairman. You are not going to 
suck me into that today. Not today.
    Except I would echo your comments about Ms. Goldstein and 
the reason that she was so on point is because she was neither 
a legislator nor a lawyer, and I would emphasize the latter was 
the problem. But Chairman Andrews and I have this discussion an 
awful lot.
    I want to add to his comments to the three of you, if I can 
use the term lay witnesses here, the three of you in the 
middle. It was absolutely terrific. It was uplifting to hear 
all of your testimony. The diversity that is shown by your 
presence is, again, emblematic of the United States of America.
    And, Ms. Al-Suwaij, you coming from Iraq and your comments 
are particularly meaningful, and I would hope that you can wear 
the hijab everywhere all the time in public anytime and proudly 
in the United States and at work, whether at work or elsewhere.
    I am impressed very much with the bipartisan nature of this 
bill. The authors of the bill not sitting exactly in the same 
place in our political spectrum speaks an awful lot to the 
concerns that are here.
    And, again, to the witnesses for a terrific testimony, 
great compelling stories. And, of course, as always, from 
Professor Norton, terrific insight. Mr. Gray, we are very glad 
to have you and Mr. Foltin as well.
    But, Mr. Gray, you seem to be the only representative here 
for the employers' concerns, the business concerns. I have a 
couple of minutes. I just want to go to a couple of questions.
    One, I thought your testimony talking about the framework 
and its comparison with the language of WRFA and the Americans 
with Disabilities Act was very interesting, where you pointed 
out, for example, that accommodation of the ADA is designed to 
enable an employee to work whereas religious accommodations 
excuse employees from their jobs, a distinction that may not be 
readily apparent to everyone.
    And in your testimony, you spent a great deal of time 
talking about undue hardship, identifiable increased costs, 
some of the same issues that Professor Norton was talking about 
perhaps from a different perspective. So I have two questions 
if I can get them in.
    One is, with respect to the reasonable accommodation-undue 
hardship issue, could you expand a little bit on the 
differences in the language in WRFA and in ADA?
    And then my second question--I will just get to it now so 
you can try to squeeze them both in--from the employer's 
perspective, what would you view as the biggest concern of 
employers with WRFA language as it is now?
    Mr. Gray. Thank you, Congressman Kline.
    With respect to your first question, the language within 
WRFA adopts the ``essential functions'' of the job, adopts 
``undue hardship,'' adopts a lot of the terminology of the ADA. 
However, as I was alluding to in my initial comments, it is 
very difficult to take situations talked about by other folks 
here and try to put an identifiable cost on them.
    In the ADA's context, companies are able to look at the 
particular cost, make a determination whether or not it 
provides an undue hardship, and then make the different 
determination. The issues that Professor Norton talked about, 
the effect on other employees within the workplace, much more 
difficult, and the language within WRFA does not provide for 
evaluation or that type of balancing of those costs, and you 
actually could lead to a situation where you are favoring one 
religious person within the workplace as opposed to others.
    With respect to your second comment, I think the largest 
concern on behalf of employers is the cost and the disruption 
to the workplace, though well intended, but the disruptions to 
the workplace that businesses, small and large, as noted 
earlier, 15 employees on up, will feel in trying to adopt the 
terms within WRFA. It was done initially to try to clarify 
post-Hardeson the burdened companies face.
    However, it does not go as far as it needs to to clarify 
that. So I think, in answer to your question, the cost in 
disruption to the workplace, I think, is the biggest concern of 
employers throughout the United States, as the language is now.
    Mr. Kline. Okay.
    Thank you very much, Mr. Chairman. I yield back.
    Chairman Andrews. I thank my friend.
    The Chair is proud to recognize one of the two authors of 
the bill, the gentlelady from New York, Ms. McCarthy.
    Mrs. McCarthy. Thank you, Mr. Chairman.
    Before I ask my questions, I want to thank Chairman Andrews 
for working with me and holding these hearings.
    And I do understand the issues that are facing each and 
every one of you, and it was making me think that for the first 
time in 14 years, I was able to get a gun safety bill passed 
through this House and the Senate and the president signed it 
in January, and the reason I got it passed was because I worked 
with the NRA. Now that is a very, very odd relationship, the 
NRA and me.
    What I am trying to say is from hearing and listening to 
your testimony, we are not that far apart on what we can do to 
accommodate, to make this a bill that can, in my opinion, help 
the American people, all Americans, all people, and so I think 
there is something that we can work with.
    You know, that is why we have hearings like this so that we 
can hear the concerns of those that have the concerns and try 
and see if we can come up with the language to accommodate 
everybody so that, in the end, hopefully, we will have a good 
bill because there are problems out there.
    And in New York, as Mr. Standish has said, we have been 
doing it. We have worked at it. We have seen the complaints 
come down. So it is not a difficult situation.
    So, with a question to Mr. Standish--and, actually, Richard 
Foltin--certainly, Mr. Gray, if you would like to come in on 
that--being that the supporters of WRFA are willing to add 
language indicating that the provisions are not to be 
interpreted in a manner that will result in harm to third 
parties, I think that is something that we can try to work out 
together. Would you be----
    Mr. Foltin. Yes. Thank you, Congresswoman.
    Let me say that, first of all, I think as a preliminary 
matter, the groups that have formed the coalition, we do not 
agree with some of the analysis in terms of what WRFA would do, 
and I think if one looks at the cases, one finds remarkable 
consistency.
    The kinds of cases Professor Norton has talked about, which 
have been decided negatively, have not turned on the fine point 
as to whether or not there is a de minimis cost to the employer 
or not. It has really been quite striking at how strongly they 
speak about how no employer could be possibly expected to have 
to deal with a workplace where employees are degrading one 
another or essential services are being denied.
    But, having said that, we all understand that no piece of 
legislation is perfect and that there are things that are clear 
to one party, may not be clear to another, and so it may well 
be--in fact, it is the case--that speaking for the coalition, 
we are very prepared to seek ways to clarify this legislation 
so as to remove the possibility of the bill being interpreted 
in a way that would be unfair to third parties or to other 
employees.
    Having said that, Congresswoman, I think one of the 
problems in getting there from here has been the approach that 
has been taken, frankly, by some of those who have raised those 
concerns. That is that they have not been simply interested in 
the kind of clarification that Professor Norton has spoken 
about, but have really wanted to write out of this legislation 
the ability of some Americans to come to court to even try to 
make the case how they can be accommodated without harm to 
third parties or other employees, and that, I think, from our 
perspective is an untenable approach.
    If we can get to the place where we agree that perhaps by 
adding provisions to the ``undue hardship'' definition so that 
it is clearer than it is now for those that are concerned, that 
it is an undue hardship if third parties are materially harmed, 
services are materially delayed, or made unavailable, if it is 
made an undue hardship criterion that there is a disruption in 
the workplace, if we can agree that those are the kinds of 
approaches that ought to be taken, then I think that there is a 
way to go from here.
    Mrs. McCarthy. And I agree with you on that. You know, 
again, certainly listening to Professor Norton, I think there 
is a way of accommodation. I also know that in a perfect world, 
we can sit down and negotiate and come out probably with the 
right words. I also know through this committee work and 
certainly the committee work on the Financial Services if we 
come out with a bill and no one really is complaining, but no 
one is really happy with it, basically, it is usually a good 
bill. That is the way things go around here.
    But, with that being said, I am sure this committee will 
continue to work on it. I think it is a good bill. I already 
know it is working in New York, and I think we can make it 
accommodating for the rest of the country.
    Mr. Standish, do you have any----
    Mr. Standish. I agree with you, and as Mr. Foltin 
indicated, we are willing to negotiate. The trick here is who 
are we negotiating with and when is the deal done because there 
are opponents to WRFA who will not be happy unless it is a 
restricted bill that only covers religious beliefs that they 
believe are innocuous. In other words, it creates a two-tiered 
system where some religious beliefs or practices get 
preferential treatment over others. That is a non-starter.
    However, adding clarifying language, I think, is absolutely 
very, very doable, as long as we can be assured that we are 
negotiating with the folks who are in the position to make a 
deal without sort of making concessions and then still having 
the same opposition we already have currently.
    Mrs. McCarthy. Thank you.
    And I am looking forward to working with this committee to 
clarify certainly the third party, and, hopefully, we can get 
that done.
    Thank you.
    Chairman Andrews. I thank the gentlelady, and I thank her 
for the spirit of her questions. I mean, I think it is very 
significant that Mr. Souder, who is a devout Republican and a 
very conservative member, and Ms. McCarthy, who is a moderate 
Democrat from Long Island, a devout Democrat----
    [Laughter.]
    Chairman Andrews [continuing]. Have worked together on 
this. I think we have had very legitimate issues raised from 
the employers' point of view, from the point of view of 
protecting civil liberties of others, and I think it is quite 
possible we can work together and get this done.
    So I also hear Mr. Standish. We sort of have a rule when it 
comes to negotiation. We trade ideas for votes, to be perfectly 
blunt, and, you know, if people want to be part of a 
discussion, they need to get on board and vote for it. So that 
is the way it works.
    The Chair recognizes the gentlelady from California, Ms. 
Sanchez, for 5 minutes.
    Ms. Sanchez. Thank you, Mr. Chairman.
    And I want to apologize to the panel if some of these 
questions have been asked. I have been running in and out, but 
I have had an opportunity to look at the written testimony.
    And, Professor Norton, I specifically appreciate the 
concerns that you have raised about the impact of the Workplace 
Religious Freedom Act that it may have in circumstances where 
an employee's requested accommodations conflict with another 
person's civil or reproductive rights. I personally do not want 
to see a woman be denied birth control, for example, by a 
pharmacist or lectured by an ultrasound technician, but I also 
do not want to see employers discriminate against employees for 
their religious beliefs.
    Can you clarify the difference under current law between 
the clear rule that employers cannot discriminate based on an 
employee's religious belief and the very different rule with 
different standards governing an employer's responsibility to 
make affirmative accommodations for an employee's religiously 
felt need to, for example, proselytize about white supremacy in 
the workplace or call a woman seeking birth control a murderer?
    Ms. Norton. Certainly, Congresswoman. Title VII with 
religion basically requires employers to do two things. First, 
it makes clear that employers may not discriminate against an 
employee because of their religious belief, their state of 
mind, what they believe to be true as a religious matter, nor, 
of course, may they discriminate against an employee because of 
his or race, color, sex, or national origin.
    Title VII, after the 1972 amendments, also created an 
additional duty on employers with respect to religion only of 
the five classes protected under Title VII. It made clear that 
employers also have a duty to reasonably accommodate the 
religious practices, the act, the behaviors, the observances of 
an employee unless to do so would create an undue hardship. And 
among other things, one of the things that we are wrestling 
here today with is how broadly or how narrowly should ``undue 
hardship'' be defined for these purposes.
    But that is a balancing inquiry. An employer, you know, has 
an absolute duty not to discriminate against an employee 
because of his interreligious beliefs, no matter now unfamiliar 
or incomprehensible or even disagreeable he or she finds them.
    So, for example, one court, correctly in my view, found 
that an employee could not under Title VII demote an employee 
once the employer found out that this employee was a member of 
the Church of the Creator. The employer found those religious 
beliefs repugnant, as do I, but, nonetheless, Title VII 
protects freedom of conscience.
    On the other hand, if that employee had asked for an 
accommodation allowing him to proselytize in the workplace, to 
share his views about white supremacy in the workplace as a 
matter of religious conscience, I believe that certainly under 
current law the employer would not have to do so because that 
would surely impose more than a de minimis hardship on the 
employer and its coworkers, and what we are trying to figure 
out is to predict what would happen if we changed the undue 
hardship standard.
    Ms. Sanchez. Thank you.
    In 2004, an employee sued Hewlett-Packard for terminating 
him after he refused to remove antigay posters from his 
workstation. The plaintiff claimed that Hewlett-Packard engaged 
in disparate treatment by terminating him because of his 
religious views and that the company failed to accommodate his 
religious beliefs.
    The case was resolved to uphold the company's reasonable 
workplace policy, and knowing the facts of this particular 
case, how do you believe it might turn out differently if the 
proposed WRFA standards were applied?
    Ms. Norton. The answer is I do not know, which is why I 
would love to see a clarification. We know how it comes out 
under the current standard. We know that the employee lost and 
the employer was not required to abandon its diversity 
campaign, nor was it required to allow this employee to deliver 
what the employee conceded were hurtful messages about 
homosexuality in the workplace and his effort to try to change 
other people's behavior. We know how it turns out under the 
current standards.
    This bill proposes to change that standard substantially in 
order to change outcomes in a number of cases, and I agree that 
we should change the outcomes in a number of cases. It is too 
hard for workers to get their religious practices accommodated 
in the workplace, but I do not know if it would change the 
outcome in that particular case, and if it would, I would find 
that troubling.
    Ms. Sanchez. Thank you.
    My last question for Mr. Foltin. In explaining your current 
version of WRFA in your written testimony, you indicate that 
the claim of a pharmacist who is fired because he chooses not 
to dispense birth control or emergency contraception would not 
be sustained under WRFA, and you explained that for the 
customer whose prescription is not filled, this would 
constitute a possible significant difficulty or expense.
    My concern is whether or not under WRFA as written, the 
court could take into account the difficulty to the customer as 
opposed to merely the difficulty of the employer. It is not 
clear to me that the language of the bill requires or even 
permits a court to consider the difficulty to the customer, and 
assuming that the employer lost only a few customers a year due 
to his employee's religious beliefs, might a court find that 
the employer did not face an undue hardship?
    Mr. Foltin. Thank you, Congresswoman. I think a response to 
that is that, in terms of whether there is an undue hardship 
and what would be an undue hardship under WRFA, an inability of 
the employer to provide the service or product that it is in 
the business of providing will be an undue hardship so that I 
think it falls well within the criteria that we have placed 
within WRFA that, in fact, where the employee would be put in 
that position and these third parties, this clientele, were 
being turned away that, therefore, there would be an 
opportunity, were the clients held to be denied the service.
    Now, on the other hand, what we do think WRFA does 
strengthen is the obligation of the employer to try to find a 
way to accommodate the employee in a way that does not harm 
those third parties, and in doing that, it does very much what 
the American Pharmacist Association says the correct policy 
should be, which is that they support the ability of a 
pharmacist to excuse him or herself from certain activity, but 
also they believe that comes with the responsibility for the 
pharmacy, for the company to assure patient access to legally 
prescribed therapy, and we believe that is the correct result.
    Sometimes the employee will not be able to be accommodated, 
and in that case, clearly, that employer under the current law 
and under WRFA will still be entitled to require that employee 
to provide the service.
    Ms. Sanchez. If I could, Mr. Chairman, I request 30 
seconds.
    Chairman Andrews. Yes, we will indulge in one more 
question.
    Ms. Sanchez. Thirty seconds?
    Chairman Andrews. Sure.
    Ms. Sanchez. It is just a follow-up question.
    So, in your understanding, undue hardship would include 
even the lost of just client who was refused services?
    Mr. Foltin. Yes, I think that if a client is being turned 
way, if the business is providing a service and you are not 
able to provide that service, that is an undue hardship for the 
employer because it is not going to play out just in the one 
case. It is going to play out on an ongoing basis.
    Ms. Sanchez. Thank you very much.
    Chairman Andrews. I appreciate it. It strikes me in 
listening to the excellent questioning from both sides that 
there is a pretty broad consensus on intention here. There may 
be some disagreement over whether the language accomplishes 
that intention, how it might better do so, but I thank the 
gentlelady for her very elucidating questions.
    The gentleman from Pennsylvania, Mr. Sestak, is recognized 
for 5 minutes.
    Mr. Sestak. Thank you very much, Mr. Chairman.
    Ms. Norton, I really enjoyed everyone's testimony, but, in 
yours, you talk--and I agree about liking the concepts behind 
this bill--about targeted approaches. You do not in your 
testimony--and I do not think in the written either that I 
could find--talk about the language of accommodating tangential 
or temporary impacts upon job performance in that this bill 
would let you accommodate that. Could you speak to that 
because, in my mind, I thought some not insignificant concerns, 
and I am not sure anybody even addressed that language here. It 
may bode more of a problem than maybe the word ``undue 
hardship.''
    Ms. Norton. Certainly, Congressman.
    As written, H.R. 1431 creates a duty of reasonable 
accommodation only with respect to an employee who can perform 
the ``essential functions'' of the job with or without 
reasonable accommodation, and this leaves employers free to 
argue that the inability to perform a certain job duty, like 
dispensing contraceptives or something like that, for religious 
reasons means that an employee cannot perform the job's 
essential functions.
    But--I think this is what your question goes to--the bill 
goes on to provide that this ability to perform essential 
functions should not be considered compromised by practices 
that only have a temporary or a tangential impact on the 
ability to perform job functions.
    And as far as I know, this phrase does not appear in any 
other federal statute, so it is hard to predict with any 
confidence how it would play out, and it does invite some 
questions--at least it is hard to predict with confidence how 
it would play out.
    For example, would it require accommodation of a 
pharmacist's request to decline to dispense contraceptives, if 
contraceptives only make up a small portion of that pharmacy's 
sales? Or would it require an employer to accommodate a nurse's 
request not to participate in tubal ligations or vasectomies, 
if those services turned out to be only a small percentage of a 
hospital's services?
    It is not clear to me, and I would be happy or I would feel 
more confident about how this is all going to play out if it 
were clarified.
    Mr. Sestak. Clarified that phrase also, as well as undue 
hardship?
    Ms. Norton. Yes, sir.
    Mr. Sestak. Mr. Foltin?
    Mr. Foltin. May I just comment on that?
    Mr. Sestak. Yes. I knew you were going to jump in there.
    Mr. Foltin. First of all, if we are dissecting the 
essential functions language, I think it stands for the 
principle no good deed goes unpunished because that language 
was put in in an effort to meet concerns coming from the 
business community which had pointed out that there was no 
essential function language in existing religious accommodation 
law, unlike the Americans with Disabilities Act.
    If I say in the business community, I am not going to get 
to my esteemed colleagues here to my left.
    But I think the essential point about the essential 
functions provisions sort of provide the threshold. That is it 
is the definition. You do not have to go into the reasonable 
accommodation-undue hardship analysis of whether or not the 
employee is going to receive the accommodation if you can show 
that they are not able to fulfill the essential functions of 
the job.
    In other words, you do not have to hire unqualified 
employees and you also do not have to hire, for instance, a 
person who is being hired to be a weekend night watchman when 
we know they are a Sabbath observer and they are not going to 
be able to work either Saturday or Sunday.
    So whatever that language may mean--and it was put in to 
deal with concerns about Holy Day observance and not allowing 
employers to say in the larger context if that is a per se bar 
to providing accommodation, it is simply a threshold.
    So the concerns about the pharmacy, for instance, will 
still need to be resolved even if the employee were to be found 
to be able to fulfill the essential functions of the job in the 
context of the undue hardship and reasonable accommodation 
analysis.
    Mr. Sestak. I appreciate that and also the phrase no good 
deed goes unpunished. However, the phrase I am most concerned 
about with this language, which is actually raised in one court 
case. is the phrase that someone could use this language for 
heaven can wait, and that is used persistently in the sense to, 
you know, permit the pharmaceutical person to say, you know, 
``It tangentially impacts the job of the pharmacy, if you are 
able to interpret now saying, ``That is just a tangential part 
of my job. So, therefore, I can accommodate that in my 
pharmacy.''
    Ms. Norton, you know what I am saying here.
    And so I am struck more by this is a good bill, a needed 
bill, and I was struck when we got our first Muslim on my first 
command of a ship, a small boat, only about 100 men, and we had 
to begin to find out--and there is no room on there for 
religious services--where could he practice to pray to Mecca 
enough times of day in privacy? So accommodation needs to be 
done. I am just taken that it probably needs strengthening of 
words and clarification for both undue hardship and this 
phrase.
    Thank you.
    Chairman Andrews. I thank the gentleman.
    I want to extend my appreciation and the committee's 
appreciation to the witnesses. The testimony was well thought 
out, very helpful to the committee, as was the first panel, for 
those that are still here.
    As the committee proceeds on its deliberations, I am 
certain that we are going to call upon you for further advice 
and guidance, as we try to work through these problems. I want 
to express my appreciation again to the witnesses for traveling 
a great distance, putting in a great deal of preparation, and 
showing us the way the process is supposed to work.
    Many people think that American politics is about battles, 
and sometimes it needs to be, but when it is at its best, it is 
about the exchange of ideas, refinement of positions, and I 
think you have given us a great opportunity to do that today.
    I would ask my friend, the ranking member, for any 
concluding comments he may have.
    Mr. Kline. Thank you, Mr. Chairman.
    Again, my thanks to the witnesses. It was really a great 
panel.
    It is incumbent upon us as we are, in fact, creating law, 
making statutes, that we be as clear as we possibly can to the 
points that were raised by Professor Norton and others. We 
would like the statute to come out and be clear so everybody 
knows where they stand, and it is always a challenge here. No 
matter how many lawyers we have up here or out there, it is 
always a challenge to get it right here and, frankly, not to 
leave it to all those lawyers to try to sort out what we meant. 
So I think there is more work to be done here.
    Again, I am heartened by the sort of bipartisan approach 
that we need to do something here. As is always the case, we 
want to do it right.
    So, again, thanks to the witnesses.
    Thanks to you, Mr. Chairman.
    Chairman Andrews. Thank you as well.
    As previously ordered, members will have 14 days to submit 
additional materials for the hearing record. Any member who 
wishes to submit follow-up questions in writing to the 
witnesses should coordinate with the majority staff within 
seven days.
    Without objection, the hearing is adjourned.
    [The statement of Mrs. McCarthy follows:]

   Prepared Statement of Hon. Carolyn McCarthy, a Representative in 
                  Congress From the State of New York

    Thank you Mr. Chairman and fellow members of the subcommittee. I 
welcome the opportunity to testify about the Workforce Religious 
Freedom Act (``WRFA''). I would first like to thank my colleague, Mr. 
Souder. We have worked closely on this bill and garnered bipartisan 
support for it. This bill simply stated is pro-business, pro-faith and 
pro-family. It is an important piece of legislation and its passage is 
long overdue.
    I felt the need to get involved-with over 40 diverse organizations-
in favor of this legislation because I have heard of many individuals 
who are forced to choose between their job and their religion. Nowadays 
we have a 24 hour, 7 day a week work environment that clashes with 
religious observances. And unfortunately since 9/11 our Muslim and Sikh 
friends have been the target of backlash.
    Our great nation was founded under the principles of freedom, 
including religion. We as members of Congress have a responsibility to 
ensure people are able to freely practice. Asking a person to leave 
their religion at their door is impossible and something they should 
not be asked to do.
    In 1964 Congress realized the importance of religion to workers by 
providing Title 7 of the Civil Rights Act. Simply stated employers are 
not allowed to discriminate based on race, gender, color and religion. 
Employers must reasonably accommodate employees' sincerely held 
religious practices unless doing so would impose an undue hardship on 
the employer. But as the courts began to rule on cases they ruled that 
most ``hardships'' are an ``undue hardship.'' This has left religiously 
observant workers with little legal protection.
    WRFA will reestablish the principle that employers must reasonably 
accommodate the religious needs of employees. It would redefine undue 
hardship as something that imposes significant difficulty or expense on 
the employer or that would keep an employee from carrying out the 
essential functions of the job. An important point to make is that 
third parties would not be adversely affected. I have been hearing and 
reading a lot regarding the bill from organizations, which I agree with 
a majority of the time, that third parties would be affected. I am a 
pro-choice member of Congress and believe a woman should be able to 
choose what happens to her body especially in case of an emergency. 
This legislation would not prevent a woman from receiving an emergency 
abortion, obtaining birth control medication or emergency 
contraceptives.
    For example, if a nurse has a religious objection to participating 
in an emergency abortion she would not be covered under WRFA. 
Performing an emergency surgery is an essential function of nurse's 
job. A court would not hear a case brought by a nurse, who feels 
wrongly dismissed by a hospital because the nurse walked away from a 
patient in need of emergency care. A patient who is suffering places a 
significant burden on a hospital and the hospital would have to assist 
them. If a woman goes to an abortion clinic she can be subjected to 
violence and threats. Unfortunately there has been a need to have the 
clinics protected. This law would not allow a clinic to be unprotected. 
If a police officer had a religious objection with guarding the clinic 
his request for removal is accommodated as long as a replacement was 
possible. If not, then the officer must accept the assignment. Another 
concern I have heard regarding the bill is women would have difficulty 
obtaining birth control because this bill would protect a pharmacist 
who feels it is against their religion from filling the prescription. 
Currently, The American Pharmacists Association's policy is that 
pharmacists can refuse to fill prescriptions as long as they make sure 
customers can get their medications some other way. This is exactly the 
point of the legislation!! This bill would allow a pharmacist who has a 
strong religious objection to filling the prescription from doing so 
without any affect on the individual. A woman would still receive her 
prescription.
    I'd like to point out that the bill does not apply to employers who 
have fewer than 15 employees. This protects against circumstances in 
which an employer would not have the personnel in place or is located 
in a rural area. So, for example, a pharmacy would operate under their 
association's policy. It is time to allow people to once again practice 
their religion without fear of losing their job.
    Once again I thank you for the opportunity to talk about 
legislation that is pro-business, pro-faith and pro-family. I welcome 
any questions you may have.
                                 ______
                                 
    [Additional submissions of Mr. Kline follow:]
    
    
    
                                ------                                

    [Statement of the HR Policy Association may be accessed at 
the committee website's following address:]

 http://edlabor.house.gov/testimony/2008-02-12-HRPolicyAssociation.pdf

                                 ______
                                 
    [Whereupon, at 5:10 p.m., the subcommittee was adjourned.]

                                 
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